WHAT IS THE H2B VISA?

The H2B non-agricultural program is for temporary workers and permits employers who meet the program requirements to hire non-immigrant workers based on the employer’s temporary need.

The employer applicant must establish that its need is temporary in nature. 

To be considered temporary, the need must be established as one of the following:

• One-time Occurrence.- An employment situation that is permanent but a temporary event of short duration has created the need for temporary workers.

• Seasonal Need.- The need is traditionally tied to a season of the year by an event or pattern.

• Peak-load Need.- The employer needs to temporarily supplement its permanent staff at the place of employment due to seasonal or short-term demand.

• Intermittent Need.- The employer has not employed full-time workers to perform the service, and it occasionally needs temporary workers to perform the service for short periods. 

The program has a statutory numerical limit (or cap) on the number of foreign nationals who may be issued an H2B visa during a fiscal year. Congress has set the H2B cap at 66,000 per fiscal year:

• 33,000 for workers who begin employment in the first half of the year from Oct 1 to March 31, 

• 33,000 workers for the second half of the fiscal year, from April 1 to September 30.

H2B petitions may only be approved for nationals of countries that the secretary of Homeland Security has designated with the concurrence of the Secretary of State’s office, as eligible to participate in the H2B program.

DOES YOUR COMPANY QUALIFY FOR THE H2B VISA?

To participate in the H2B program, the employer must establish:

• There are not enough U.S workers who are able, willing, qualified, and available to do the temporary work.

• Not adversely affect the wages and working conditions of similarly employed U.S workers. 

• The employer’s job opportunity must be: Temporary, Full time and non-agricultural.

• Be an employer with a valid Federal Employer Identification Number (FEIN).

• Have a business in the United States. 

H2B APPLICATION PROCESS

The process includes:

 1. Establish the company’s need, by submitting the following o GMIC: 

• Monthly Payroll records for the prior two or three years.
• Monthly Sales records for the prior two or three years.
• Sales projections for the following twelve months. 

2. Submit a request to the Department of Labor (DOL) the current salary of the position to be filled. The DOL will issue the determination based on the counties or localities specified in the application and the nature of the job duties. 

3. Demonstrate to the Department of Labor that the company has a temporary need and is not displacing local job seekers through local recruitment. 

4. Once the DOL determines there are not enough U.S. workers capable, willing, and qualified to do the job, it will issue a Temporary Labor Certification (TLC); This TLC will be submitted along with a petition to USCIS requesting the final employer’s H2B approval. 

5. After USCIS approves the employer’s application, prospective H2B workers must apply for a visa to theUnited States Department of State at an Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP).

The entire process takes approximately 5 months.

EMPLOYER RESPONSIBILITIES

The current regulatory framework also mandates responsibilities for H2B employers, who must be aware of these responsibilities and be prepared to demonstrate compliance during an audit.

• Upon completion of 50% of the job order period, provide or reimburse the cost incurred for transportation and subsistence (including lodging incurred and meals) from the worker’s country home to the place of the employment.

• H2B workers must be provided or reimbursed for all visa-related and border-crossing fees in the first workweek of employment.

• All employer-provided transportation must meet applicable safety standards.

• Provide, at no cost, all tools, supplies, and equipment required to perform the assigned duties.

• Employers MUST NOT place H2B workers outside the geographic area(s) or the occupation listed in the job order.

• Employers must not lay off or displace similarly employed U.S workers within 120 days before the job order through the end of the job order.

• Employers and their agents MUST NOT request or receive payment from any worker for any cost related to obtaining the H2B certification.

• No later than the first day of work or before getting the visa (in the case of H2B workers outside the US.), H2B workers must receive accurate written information about wages, hours, working conditions, and benefits of the employment offered in a language understood by the worker. 

• Paid at least every two weeks at the rate indicated in the job order for all hours worked, and provide to the worker a written statement of earnings (pay stub) each period.

• Guarantee employment or payment for at least 75% of the hours promised in the job order every 12 weeks period.

• Upon completion of the job order or if dismissed early for any reason, the employer must provide or pay for return transportation and subsistence.

• The employer must provide Workers CompensationInsurance to H2B workers.

• Employers MUST comply with all other applicable Federal, State, and local laws.

[elfsight_whatsapp_chat id=”2″]

WHAT IS THE H2A VISA?

The H2A agricultural program is for temporary workers and permits employers who meet the program requirements to hire non-immigrant workers based on the employer’s temporary needs. The employer applicant must establish that its need is temporary in nature. 

Depending on the type of work you need, TEMPORARY or SEASONAL agricultural work can happen on farms, plantations, ranches, nurseries, ranges, greenhouses, orchards, or other similar locations.

• Seasonal work is when you need more help than usual because the work is tied to a certain time of the year by an event or pattern, like a short annual growing cycle.

• Temporary work lasts no longer than 10 months. If you have been affected by a strike, work stoppage, or layoff within 60 days of when work will start, you may not qualify for the program. 

DOES YOUR COMPANY QUALIFY FOR THE H2A VISA?

The general guidelines below will help you understand whether you are eligible to participate in the program:

• You must be an employer with a place of business physically located in the United States, Possess a valid Federal employer identification number (FEIN), and have the ability to hire, fire, supervise, or otherwise control the work of the workers you employ.

• The work to be performed must consist of agricultural labor or services, such as the planting, raising, cultivating, harvesting, or producing any agricultural or horticultural commodity.

• The work must be full-time, the need for the work must be seasonal or temporary.

EMPLOYER RESPONSIBILITIES

The current regulatory framework also mandates responsibilities for H2A employers, who must be aware of these responsibilities and be prepared to demonstrate compliance during an audit.

• Employers must provide housing, and it needs to meet applicable safety standards.

• Workers who live in employer-provided housing must be offered three meals per day at no more than a DOL-specified cost or provide free and convenient cooking and kitchen facilities.

• Upon completion of 50% of the job order period, provide or reimburse the cost incurred for transportation and subsistence (including lodging incurred and meals) from the worker’s country home to the place of the employment.

• H2A workers must be provided or reimbursed for all visa-related and border-crossing fees in the first workweek of employment.

• All employer-provided transportation must meet applicable safety standards.

• Provide, at no cost, all tools, supplies, and equipment required to perform the assigned duties.

• Employers must not lay off or displace similarly employed U.S workers within 120 days before the job order through the end of the job order.

• Employers and their agents MUST NOT request or receive payment from any worker for any cost related to obtaining the H2A certification.

• No later than the first day of work or before getting the visa (in the case of H2A workers outside the US.), 

• H2A workers must receive accurate written information about wages, hours, working conditions, and benefits of the employment offered in a language understood by the worker. 

• Paid at least every two weeks at the rate indicated in the job order for all hours worked, and provide to the worker a written statement of earnings (pay stub) each period.

• G

  uarantee employment or payment for at least 75% of the hours promised in the job order every 12 weeks period.

• Upon completion of the job order or if dismissed early for any reason, the employer must provide or pay for return transportation and subsistence (Including housing at no cost).

• The employer must provide Workers Compensation Insurance to H2A workers.

• Employers MUST comply with all other applicable Federal, State, and local laws.

The H2A visa processing time can depend on several factors, including the processing times of various governments. Generally, the whole process takes about 90 days from start to finish to complete.

The process includes:

1. Determine the most accurate job description for the work.

2. Prepare and submit an agricultural job order to the local SWA. The SWA will review the job order and will initiate recruitment of U.S workers.

3. The Employer applies for a temporary labor certification with the Department of Labor’s Chicago National Processing Center and receives the final determination.

4. Submit an H2A visa petition with U.S Citizenship and Immigration Services.

5. Workers apply for the H2A visa with the Department of State and complete consulate interviews.

6. Approved workers travel to the worksite and arrive on the start date with an arrival/departure record.

IMPORTANT NOTES

• Foreign agricultural workers temporarily admitted into the United States on H2A visas are exempt from U.S. Social Security and Medicare taxes on compensation paid to them for services performed in connection with the H2A visa.

• Compensation paid to H2A agricultural workers for services performed in connection with the H2A visa is not subject to mandatory withholding of US federal income tax backup withholding applies.

• The employer can withhold federal income tax only if both the H2A agricultural worker and the employer agree to withhold.

• If the H2A worker quits the job or is terminated, the employer must notify GMIC, DOL, and USCIS; after notification, the employee’s visa is canceled. He/she may be forever barred from the H2A program.

• The employer must keep H2A’s documents and files fora minimum of three years after the Department of Labor’s approval in the event that an audit is required.

[elfsight_whatsapp_chat id=”2″]