A guide to navigating the lengthy H-2B application process

Updated Dec 6, 2018
Photo: Beatrice Murch/FlickrPhoto: Beatrice Murch/Flickr

As the year winds down, there are a lot of things to consider from next year’s budget to off-season services, but don’t let the month slip by without contemplating your labor needs.

While those accustomed to H-2B probably already filed their applications in November, there is still time for those who think they’ll need extra workers in the spring.

H-2B is a heated topic on Capitol Hill and certain elements of it, like the returning worker exemption, are always an uncertainty from year to year. However, this article is going to be looking at the facts of what H-2B is and how to go about filing an application if you do decide it might help with your labor shortage.

The H-2B nonimmigrant visa program allows employers to hire foreign workers to come to the U.S. and perform temporary, nonagricultural work on a one-time, seasonal, peak load or intermittent basis.

The current limit of H-2B visas available is 66,000 per fiscal year with 33,000 being available for workers who start during the first half of the fiscal year (Oct. 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

Any unused visas from the first half of the fiscal year are available for the second half, but any visas not used over one fiscal year are not carried over to the next. The number of visas available can greatly be increased when the returning worker exemption is in effect, as these do not count towards the H-2B visa cap.

The visa is only valid for a maximum of one year, but the employer can extend the stay for a one year period, twice. In other words, the longest amount of time an H-2B worker can stay before having to leave the country is three years.

Extensions at the end of the H-2B period are granted in “extraordinary circumstances” where the employer can prove the continued need of the service of the H-2B employees, such as delays in a project, a sudden increase in contracts or natural disasters.

Employers can only file their H-2B petition 60 days but no more than 120 days before the workers are needed.

Below are the steps you need to follow when applying for H-2B visas.

  1. Obtain a prevailing wage determination (PWD).
  2. File job order with State Workforce Agency (SWA).
  3. Apply for temporary labor certification.
  4. File H-2B petition.

This procedure may sound simple but there are many hoops to jump through at each stage of the process.

“Nobody uses the H-2B program because it is easy,” said Elaine Lord with YardApes based in New Millford, Connecticut.

Only the truly desperate tolerate the bureaucracy in order to get their workers. As many opponents accuse H-2B of stealing jobs, visa applicants have to prove in multiple ways how hard they have tried to hire American workers.

Prevailing Wage Determination

In order to obtain a PWD, employers must submit an ETA Form 9141 through the iCert portal. This should be filled out at least 60 days before it is needed.

This is a crucial portion because the PWD will determine the minimum wage you are required to pay your H-2B workers. It is important to be accurate and specific when listing expected job duties, as being vague or generic can result in difficulty in receiving a determination.

Listing the geographical area is the other tricky portion of the PWD, as this can result in a higher or lower wage determination depending on where all you expect your laborers to be working. Bull City Lawyer advises employers to think broadly when they identify their geographic region and think of areas they also hope to work in the coming years.

Job order

After receiving a PWD, you can proceed with filing a 10-day job order with the SWA in the area of intended employment. The job can start no more than 120 days before the need. The SWA must be notified the job order is in conjunction with an H-2B filing.

The employer is required to publish two print advertisements for the position, one of which must be on Sunday. After contacting all applicants, the employer must create a Recruitment Report, which outlines their efforts to hire local workers. You can click here to view all of the recruiting requirements under the H-2B program.

Temporary Labor Certification

Next, you need to fill out an ETA Form 9142B. This application will call for a number of documents to attach if you are filing it electronically through the iCert portal. These include your PWD, the job order, information about your foreign recruiter and Statement of Temporary Need, to list a few.

The Statement of Temporary Need is where you outline to the Department of Labor why your need is “temporary” and which category it falls under. The categories are one-time, seasonal, peak load or intermittent. According to Bull City Lawyer, these can easily exceed 200 pages, as they will require all the relevant documentation to prove the need including employee records and business contracts.

If there is an issue with the 9142B submission, the Department of Labor will issue a “Notice of Deficiency” and give the employer an opportunity to address them.

H-2B petition

The final major step of the H-2B application process is completing the I-129 document that the employer must file with United States Citizenship and Immigration Services (USCIS).

The main difference with this form from the 9141 and 9142B is that you have to know the personal information of the workers who will be allowed to come to the U.S. and work for you.

This portion of the application also comes with a filing fee. The regular fee is $460, but Bull City Lawyer advises paying for the premium processing to expedite matters ($1,410, as of 10/1/2018).

As you can tell from the length of this article, the process of getting approved for H-2B visas is a tedious one and especially hard if you are trying to do it on your own. Attorneys and companies like Practical Employee Solutions can help with the technical aspects of this drawn-out extravaganza of paperwork.

Denied application

Even when you follow every instruction to the tee, you are not necessarily guaranteed approval. Some of the circumstances that cause an H-2B visa application to be denied include not meeting the time frame requirements, availability of workers in the U.S. for the work or the working conditions, benefits or wages of U.S. workers are compromised.

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