BY THE BOOK H-2B SEASONAL VISAS FOR FOREIGN LABOR IN THE SERVICE INDUSTRY

BY RALUCA VAIS-OTTOSEN

Given the recent labor shortage, more and more employers are seeking to fill vacancies with foreign labor. As an immigration attorney, I am frequently asked: Can this work for the service industry? The answer is yes, it can, if done properly. The H-2B temporary non-agricultural worker visa is one option.

What Jobs Qualify for H-2B?

H-2B visas are for temporary non-agricultural positions. To qualify, U.S. employers must show, among other things, that there are not enough U.S. workers who are willing, able and available for the position, and that the need for foreign workers is temporary. There are four ways to show temporary need:

1. Establish seasonal need for businesses whose operations are traditionally tied to an annual season. The season must be recurring and its duration reasonably predictable. Establishments operating a few months in the summer or a few months in the winter could explore this option. Any season may work if it is annually recurring and predictable.

2. Qualify for peak load if employers have permanent workers year-round, but need to supplement the workforce temporarily due to a peak season. The peak season must be predictable.

3. Demonstrate intermittent need for businesses that have not employed permanent or full-time workers for a position, but that occasionally and intermittently need temporary workers for short periods.

4. Claim a one-time occurrence if the employment situation is otherwise permanent, but a temporary event of short duration has created the need for temporary workers. Employers have attempted to argue the COVID-19 pandemic is such an event that has created a onetime need for foreign labor. Unfortunately, the U.S. Department of Labor (DOL) has not agreed and has denied applications for foreign labor certification using this argument, in large part because the duration of the pandemic-driven labor shortage is not predictable (Matter of Tofte General Store Inc. Board of Alien Labor Certification Appeals Case No. 2022TLN00010, Nov. 2021). As with all other H-2B eligibility categories, the onetime occurrence must also have a temporal predictability.

How Does the H-2B Program Work?

Employers must first request a prevailing wage determination from the DOL. Once the determination is issued, employers must file for foreign labor certification and follow strict recruitment requirements indicated by the DOL for their specific case. If the employer receives no applications from eligible U.S. workers during the recruitment period, the DOL can certify the application to confirm no eligible U.S. workers are available.

If the DOL certifies the application, the employer can petition U.S. Citizenship and Immigration Services (USCIS) for H-2B classification for the position(s). If USCIS approves the petition and the employees are abroad, the employees must apply for the H-2B visa with the U.S. Consulate servicing their country. The employees must show to the consulate that they are eligible, they do not have any serious criminal history, they did not violate any visa status in the past, and they do not intend to permanently remain in the U.S., overstay their visa or otherwise violate the H-2B status, among other inadmissibility grounds.

How Long Does the H-2B Process Take?

In short, the process spans several months. To have foreign workers start work in April, for instance, employers should start the H-2B process in October the prior year, at the latest. The process is linear and each stage can only proceed after the prior one is approved by the proper agency. There are strict filing deadlines that, if not met, would disqualify an employer until the next filing season.

How Many H-2B Employees Can I Apply For?

There is no limit per employer, but the law only allows for 33,000 H-2B visas per each half of the fiscal year (totaling 66,000 per fiscal year). The demand is much higher, so the cap is reached very early every year. That is why following the process carefully and meeting all the deadlines are key. The government often supplements the annual cap, especially for the summer seasons, but supplements are usually not big enough to meet demand either, and they are generally limited to returning workers who previously obtained H-2B status. TLW

For any immigration-related inquiries, please contact Raluca VaisOttosen, attorney at DeWitt LLP , at (608) 695-3153 or rvo@dewittllp.com.