What Every Employer Should Know About the H-2B Program
The H-2B Program offers employers a unique opportunity to bring in foreign workers on a seasonal or temporary basis. But it’s essential that employers understand how this program works and how to comply with its rules and regulations before attempting to hire international talent. This post will cover the basics of the program, including who’s eligible, the fees involved, the paperwork that must be submitted, visa length considerations, and much more. So if you’re considering taking advantage of this program for your business, read on!
Overview Of The H-2B Program
Before getting into the nitty-gritty, you need to have a relatively comprehensive overview of what this program is and what it might mean for you as an employer. The H-2B Program provides access to foreign labour for U.S. businesses in order to fill short-term (albeit non-agricultural) worker shortages. The idea behind the program is to create a mutually beneficial situation for employers looking to fill their ranks with additional labour to keep the wheels of business turning. It’s also highly beneficial for foreigners in need of work and who want to earn money legally with as little fuss as possible. As a result, for both parties, a lawyer can help with the H-2 B visa petition process and ensure that the process runs smoothly. Or in other words, attorneys can help businesses and employees navigate the complex web of regulations in place to ensure that Americans’ jobs and salaries are not diminished and that foreign workers receive the rights they deserve.
The Application Process In A Nutshell
An employer must submit a Labour Certification Application to the Department of Labour before applying for an H-2B visa. Form I-129 must be submitted to USCIS once the employer has been approved. As well as providing all pertinent documents regarding their stay in the country, all applicants must apply for visas at U.S. consulates abroad (or travel to a country that hosts one). As you can imagine, the entire process can be highly convoluted, and if you don’t know what you’re doing, it can cause some serious headaches down the road. Therefore, as mentioned in the previous point, you should hire a lawyer who can assist you along the way. In summary, the primary process involves:
- An employer submitting an LCA to eh DoL
- File a petition with the USCIS via form I-129 once approved
- Request authorisation in tandem with the aforementioned form
- Applicant must also file their own visa application in their country of origin or in a country with a U.S. consulate
- Applicants and employers must follow the rules regarding the start of the visa and the length of stay
Current Eligibility Requirements
An employer must first understand the current eligibility requirements for the H-2B Program before they can make use of it. It is crucial that employers demonstrate that their need for temporary foreign workers results from an unpredictable event they cannot control. Furthermore, an unexpected project or spike in demand may require additional staffing to function as needed (think seasonal jobs like those in hospitality, warehousing, etc.). Nevertheless, at its most basic, employers need an EIN and must demonstrate an unexpected event, inability to fill positions with local workers, and job duties accepted by professionals before they can use the H-2B Program. Qualified workers must also satisfy wages, conditions, and skills requirements.
The Maximum Duration Of Stay
The H-2B program has a maximum duration of stay for non-immigrants. This duration varies depending on the position and specific job requirements but typically should not exceed three years in total. For example, employers hiring landscapers or tree trimmers should set their initial term of stay at 12 months, while those looking to hire seasonal lifeguards could offer an 18-month contract. In certain instances, an employer can renew their applicant’s contract for up to three years if they can demonstrate a legitimate “Continued Need” for the position and that there is no American worker available who could fill the job. The key here is that the H-2B visa holder cannot remain in the U.S. any longer than three years total; they must leave once their 3-year period is finished or apply for another type of visa. It’s crucial employers understand these stipulations before participating in the H-2B program so they don’t end up getting charged with violation penalties down the line!
Types Of Wages That Can Be Paid
There are certain wages that employers must pay under the H-2B Program, and employers must understand these wages to avoid penalties or fines. According to the governing laws, employers must pay their employees compensation that meets both federal and state standards regarding wages. An H-2B employee cannot be paid less than any other U.S. worker in a similar position, nor can they be paid less than the prevailing wage in their area (partly for reasons of fairness and partly to avoid wage dilution).
Requirements For A Safe Working Environment And Transportation
Employers must provide a safe and suitable workplace to H-2B employees, including restrooms, food preparation, and other necessary amenities. Additionally, employers must cover reasonable transportation costs for employees required to travel long distances on the same day. Payment should be provided by the end of their employment contract in the event transportation isn’t initially supplied. Consequently, in order to gain access to temporary foreign workers, employers must comply with similar rules regarding employee safety and comfort.
Required Record Keeping
As with almost all aspects of business, accurate record-keeping is a must. Throughout the process, you must keep records of all documentation pertaining to the following:
- Job offers
- Other compliance requirements
Additionally, employers are subject to random audits by the DoL, which may review all required record-keeping from the six months prior to any audit request.
The H-2B program can provide employers with access to a larger and more diverse pool of temporary labour when local employees simply can’t (or won’t) fill their ranks. It offers advantages to both employers and workers by allowing employers to recruit foreign workers on a seasonal basis and regulating protections for those workers while they’re in the United States.
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