
H-2B Non-Immigrant Temporary Visa
The H-2B Non-Immigrant Temporary visa program allows U.S. employers to hire foreign workers for temporary non-agricultural jobs, including those needed for seasonal, peak-load, or one-time occurrences. Employers must follow strict guidelines to ensure that the jobs are filled by foreign workers only after proving there are insufficient qualified U.S. workers available, and that hiring foreign workers will not negatively affect the wages or working conditions of similarly employed U.S. workers. H-2B has an annual numerical limit or “cap” of 66,000 per fiscal year that is established by law but that has been supplemented with additional visas by Congress and the executive branch on a year-by-year basis over the past few years.
Depending on the skill level of the proposed employment, the Beneficiary must show to that he or she is qualified for the job, and prove this through documents from previous employers (translated into English, if necessary).
Key Requirements for Employers
- Labor Certification: Employers must obtain a temporary labor certification from the Department of Labor (DOL), confirming there is no sufficient U.S. labor pool for the job and that the employment of foreign workers will not adversely affect U.S. wages or working conditions.
- Prevailing Wage: Employers must pay at least the prevailing wage (the highest of federal, state, or local minimum wages, or the actual wage offered) for the duration of the employment. This wage must not be based on piece-rates, commissions, or other incentives unless a guaranteed wage equal to or exceeding the prevailing wage is offered.
- Job Opportunity Details: Employers must maintain a legitimate full-time temporary position of at least 35 hours a week.
- Recruitment: Employers must recruit U.S. workers for the job by summarizing the main requirements of the job in a job order that is submitted to State Workforce Agencies (SWAs) who then refer qualified US applicants. The Dept of Labor also posts the temporary job opportunity on SeasonalJobs.dol.gov website, and the employer must hire qualified U.S. workers who apply before the job starts, rejecting U.S. applicants only for lawful, job-related reasons.
- Transportation and Housing: Employers must provide transportation and subsistence costs, including return transportation for workers who complete their contract or are dismissed early. Inbound travel expenses should be reimbursed no later than after 50% of the job period.
- Tools and Equipment: Employers must provide, at no cost, all tools, supplies, and equipment necessary for workers to perform their job duties.
- Compliance with Wage and Hour Laws: Employers must track and report workers’ earnings, hours worked, and provide pay stubs. They must also adhere to local, state, and federal employment laws, including health and safety regulations.
- No Discrimination or Retaliation: Employers cannot discriminate against workers for asserting rights or participating in protected activities under the INA or DOL regulations. They must ensure that H-2B workers and U.S. workers are treated equitably in terms of wages, terms of employment, and working conditions.
- Post-Hire Responsibilities: If an H-2B worker separates from the job early, the employer must notify the DOL and DHS within two days and provide return transportation, unless the worker has been transferred to comparable employment.
- Return Requirement: Workers must return to their home country after their authorized stay ends unless sponsored by another employer.
Additional Provisions
- Corresponding Employment: The regulations require employers to treat both H-2B workers and U.S. workers performing similar tasks (corresponding employment) in the same manner regarding wages, working conditions, and benefits.
- No Layoffs: Employers cannot lay off similarly employed U.S. workers within 120 days before or after the employment period unless they offer the positions to the displaced U.S. workers.
- Contractor Restrictions: Employers cannot hire H-2B workers from third-party contractors without ensuring that no displacement of U.S. workers has occurred.
Legal and Documentation Requirements
- Employers must maintain records for three years concerning the labor certification process, recruitment efforts, wages, and other employment conditions.
- Non-compliance penalties: Employers face penalties, including fines or ineligibility for future H-2B certifications, for failing to comply with the regulations.
These guidelines are designed to ensure the fair treatment of both U.S. and H-2B workers while maintaining the integrity of the H-2B program. The team at The Bernard Firm will assist employers in staying up to date with any changes in the regulations and ensure full compliance to avoid penalties and legal complications.