Hiring Seasonal Workers: Using H-2A and H-2B Visas Effectively

Hiring Seasonal Workers: Using H-2A and H-2B Visas

Effectively

Whiteman Osterman & Hanna LLP

Albany, New York

January 14, 2009


OVERVIEW Need for reliable supply of seasonal workers not being met

• U.S. government conflicted about availability of U.S. workers• Patchwork of prior programs has not led to viable solutions• No new initiatives gathering steam in Congress

H-2A Program serves 7,700 agricultural employers• Fills 75,000 jobs out of 1.2 million farming positions. • More than ½ of the 1.2 million positions filled by illegal workers

H-2B Program for non-agricultural seasonal workers• 66,000 H-2B visas/year inadequate to meet seasonal business

needs

What does a seasonal/temporary business do to get the workers it needs?


THE PROBLEM OF ILLEGALITYBasic rule: No visa problem can be fixed inside the U.S.

• If an alien has violated their visa status (overstay, illegal employment), the problem can only be fixed by the alien departing the U.S. and re-entering

• Re-entry may be enough; other cases require new visa stamp at home• Cannot amend / change / extend / file visa applications if not currently in valid status

Exception to the rule: Bona fide marriage to a US citizen

Three- and ten-year bars: You can’t go home again• IIRAIRA 1996: if leave the U.S. after being “unlawfully present” in the U.S. for:

6 months - cannot return to the U.S. for THREE YEARS12 months or more – cannot return to the U.S. for TEN YEARS

• Can’t fix visa status in the U.S., but can’t leave to obtain new temporary or permanent visa status at US consulate permanent illegality

Conclusion: You can’t fix the status of a worker who is illegal• Don’t waste your time trying to “fix” the status of an illegal worker• Verify status of worker before you spend money on the process – and be suspicious


H-2A VISAS - AGRICULTURAL WORKERS: The Fast Track!

REQUIREMENTS APPLICATION STEPS TIMETABLE

DURATION

1. Job must be “agricultural labor or services”

2. Job must be temporary or seasonal

3. Employer must recruit pursuant to DOL and continue to hire available Americans up to 30 days from need (for 5 years)

4. Worker housing must meet DOL/DOH standards, inspection

5. Must pay Prevailing Wage determined by USDOL

1. Place Job Order with SWA and begin recruitment; file with USDOL Chicago

2. File visa petition with USCIS

3. Issuance of visa to alien

- If in US, change status

with visa petition - If overseas, apply at US consulate

overseas for entry visa Usually work with in-

country agent to facilitate visa issuance

Pre-filing recruitment 75 days prior to need; File 45 days in advance of need

Deficiency notice sent within 7 days

Granted for up to 364 days/ year, but usually less

Renewable for total of 3 years; re-recruit each year

COSTS

DOL: $100 per appl. + $10 per jobUSCIS filing fee: $320 Recruitment costsConsular processing fees $100 – $300


H-2A VISAS: CONSIDERATIONSDefinition of ‘agricultural employment’ expanded under new regulations

• `Now codifies “incidental activities”: “work activity of the type typically on a farm and incidental to the agricultural labor or services for which an H-2A labor certification was approved”• “Agricultural Labor or Services”: other work typically performed on a farm that is not specifically listed on [Form 9142] and is minor (i.e. less than 20% of the total time worked on the job duties listed on the application), and incidental to the agricultural labor or services for which H-2A worker was sought• DOL recognizes the unpredictable nature of weather and the need for flexibility in assigning tasks.

Distinction between agricultural and non-agricultural important because

• H-2A visas are not subject to cap on number of visas each year• H-2A imposes requirements for on-site inspections of housing, provision of meals & living facilities if workers cannot return ‘home’ at night• H-2A workers get paid transportation in both directions; H-2B transport home only if terminated early


DOL H-2A AMENDMENTS

• SWA role limited to job order and housing inspection

• Attestation-based system

• Pre-filing interstate recruitment

• Eliminates “50% Rule” (now “30-day Rule”)

• USCIS notification requirement

• New Prevailing Wage process (Form 9141)

• New document retention requirements: 3 years


USCIS H-2A AMENDMENTSThe new procedures also involve changes at USCIS:

• Allow “unnamed workers” on I-129

• 1 petition for multiple consulates

• Need DOL Labor Certification Approval to file I-129

• 30-day departure

• Notification in case of worker departure

• 3 year maximum, interrupted by absence of 45 days or by 3 months

• H-2A limited to Mexico, Jamaica and 26 other countries

• Land-Border Exit System (Pilot Program)

• H-2A Portability if new employer is an E-Verify Participant


H-2A LABOR CERTIFICATION PROCESS

• File Form ETA 9141 (Prevailing Wage) with NPC

• File Interstate Job Order with SWA

• Begin positive recruitment 75 days prior to need: (1) 2 ads in local paper (including 1 Sunday); (2) Up to 3 ads in other states of labor supply; contact former U.S.

workers

• File Forms ETA 9142, ETA 790, recruitment report with DOL Chicago 45 days prior to need

• DOL will send deficiency notice within 7 days

• Updated recruitment report submitted prior to approval

• DOL must make determination 30 days prior to need

• DOL will refer applicants up to 30 days after need date – employer must hire U.S. workers up to number of certified positions


H-2A VISA PETITION PROCESS (USCIS)

• Petition Contents:Form I-129I-129H SupplementEmployer Support letterOriginal Labor Certificate$320 filing fee

• File with USCIS California Service Center

• Cannot include both named and unnamed workers on same petition

• No premium processing – USCIS will process within 1-2 weeks


CONSULAR PROCESSING OF H-2A• Request appointment with consulate through Consular Services Center (CSC) via email

• Can substitute workers if necessary

• Complete consular application Form DS-160 on-line

• Pre-pay $131 application fee at bank designated by consulate (additional $100 issuance fee due if visa approved)

• Required documents for interview: PassportForm DS-160Proof of payment ($131)Form I-797

• H-4 visas almost never issued to dependents


EMPLOYER OBLIGATIONS TO H-2A WORKERS

Required benefits to H-2A workers• Provide free housing

• Pay inbound transportation and subsistence/out-bound transportation

• Guarantee ¾ of contract period

• Provide 3 meals/day at cost to worker or kitchen facilities

• Provide Workers Compensation insurance

• Provide copy of work contract/ETA 790 to H-2A worker

Tax and withholding requirements

• FLSA wage requirements not applicable - no overtime pay required

• Employer does not withhold SS or Medicare for H-2A workers, unless USC – payments to H-2A workers NOT “income”

• Employer should report “wages” paid to H-2A worker on Form 1099-Misc


H-2A VISA CHALLENGES & STRATEGIESH-2A Challenges

• Costly

• Does not directly include certain dairy farm workers – “Milkers”

• No year-round coverage

• Must hire any U.S. Workers referred by DOL up to 30 days from need date, laying off H-2A workers in the process

• Must offer same benefits to all U.S. workers in H-2A positions

H-2A Strategies

• Include multiple farm-owned properties in one application

• Joint sponsorship by multiple farms or agricultural association

• Separate applications for Crop Workers and Winter Grounds/Maintenance Workers


NEW H-2A DOCUMENT RETENTION REQUIREMENTSAn agricultural employer must maintain the following records for 3 years:

• Recruitment: ads, recruitment reports and related documentation

• Evidence of Workers Comp

• Records of worker’s earnings

• Copy of Application

• Prevailing Wage Determination

• Request for Housing Inspection

• Evidence of compliance with housing and transportation obligations


DOL TRANSITION PROCEDURE

For need dates prior to 7/1/2009, a hybrid system is in place for transition to the new system:

• File Form 9142 and ETA 790 with Chicago National Processing Center 45 days prior to need

• All activities required prior to filing under new regulations now completed post-filing

• Recruitment Report submitted to NPC prior to approval

• NPC will determine prevailing wage

• NPC sends recruitment instructions


H-2B VISAS: CONSIDERATIONSMust plan sufficient lead time for visa processing

• Dept. of Labor processing: 90 days, including recruitment

• USCIS: 30-60 days unless use $1,000 premium processing (15 days)

• Consular application: 30-60 days, depending on lead time for appointment

Applications may be “capped out”

• 66,000 H-2 B visas per year / caps historically reached early in prior years

• “Save our Small & Seasonal Businesses Act of 2005” - effective May 25, 2005

‘Returning workers’ not counted against the cap for FY 2005 and FY 200633,000 issued every six months: helps availability for all seasons

• Returning Worker Exemption not renewed


H-2B VISA STRATEGIES

There are strategies an employer can use to maximize their ability to secure H-2B workers:

• May begin process up to 120 days in advance of need: new regulations help level the playing field by eliminating State DOL

• Time start dates to Oct. 1 and April 1 to maximize availability

• Use earlier “start date” of one month for DOL process to alleviate risk of processing delays (as of FY 2010, USCIS and DOL dates must match)

• Work with other businesses with opposite seasonal needs as tool to manage cap: H-2B amendments/extension are exempt from the cap


H-2B VISAS: TEMPORARY WORKERS

REQUIREMENTS APPLICATION STEPS TIMETABLE

DURATION

1. JOB must be temporary:

- seasonal - intermittent - peak load etc.

2. Employer must prove no qualified Americans available for position

3. Not for agricultural work

4. Capped at 66,000 visas/yr

Returning worker exempt.

not renewed for 2008/09

5. Must pay prevailing wage

1. Place Job Order with SWA 120-days prior to need

2. Pre-Pre-filing recruitment under USDOL rules

3. File Form ETA 9141 with NPC

4. File visa petition with USCIS

5. Issuance of visa to alien - If in US, change status with visa petition - If overseas, apply at US consulate overseas for entry visa May work with in-

country agent to facilitate

Start no earlier than 120 days before date of need

Granted for up to 364 days

Renewable for total of 3 years, or ad infinitum for shorter stays

Must recruit each year

COSTS

USCIS filing fees: $320; $150 Recruitment costsConsular processing costs ($100- $300)


DOL H-2B AMENDMENTS

• SWA role limited to job order: levels the playing field!

• Attestation-based System (Paper-based for now)

• Pre-filing recruitment

• USCIS Notification Requirement

• New Prevailing Wage process (Form 9141) submitted to NPC

• New Document Retention Requirements: 3 years


USCIS H-2B AMENDMENTS

• Allow “unnamed workers” on I-129

• 1 petition for multiple consulates

• Need Approved LC to file I-129

• 30-day departure

• Notification in case of worker departure

• 3 year max interrupted by absence of 3 months

• Reducing time outside the U.S. that interrupts 3 year accrual

• Land-Border Exit System

* Limited to Mexico, Jamaica and 26 other countries


H-2B LABOR CERTIFICATION PROCESS

The new rules for H-2B labor certification require:

• File Form ETA 9141 (Prevailing Wage) with Chicago NPC

• Submit Job Order to SWA 120 days prior to need

• Advertising: 2 print ads (1 on Sunday); Contact former workers

• Submit recruitment report to NPC within 2 days from job order end date

• Submit Forms ETA 9142, recruitment report and Employer Temporary Need Statement to NPC

• NYSDOL will send audit/deficiency notice within 7 days

• Final Determination issued within 60 days of need


USCIS H-2B PETITION PROCESS

When DOL has issued the Labor Certificate, the employer can submit the visa petition to USCIS

Petition contents

• Form I-129, I-129H Supp, Employer - Support letter

• Original Approved Labor Certificate Required

• Filing Fees: $320, $150 (Anti-Fraud), $1,000 (Premium Processing)

New rules

• May include unnamed workers in petition if out of U.S.

• No Association filings


DOL H-2B TRANSITION PROCEDURE

For need dates prior to 10/1/2009, the DOL has a hybrid processing system in place

• Obtain prevailing wage from SWA rather than NPC

• Carry out all required pre-filing recruitment and activities

• File Form 9142 and supporting documents per new regulations


EMPLOYMENT-BASED PROCESSLABOR CERTIFICATION

Form ETA 9089VISA PETITION

Form I-140ADJUSTMENT OF STATUS

Form I-485GC ISSUEDForm I-551

CONSULAR PROCESSING

PERM8-12 months 5-14 mos.

Problem issues

• “Green card” must be for a different job than H-2A/H-2B or cannot renew temporary visa

• Cannot file AOS or Consular Processing until priority date is CURRENT

End result

• Concentrate on temporary visas only until law changes


CONCLUSIONSNo effective long-term relief

• No current visa category available for permanent hire of the best seasonal or temporary workers• Need to lobby for long-term solution with reasonable visa quotas• Amended regulations did nothing to increase visa numbers

No effective relief if an alien is illegal: Three- and ten-year bars

No solutions for non-seasonal agricultural businesses• H-2A/B visas are for TEMPORARY employment (seasonal, intermittent, one-time need)• No visas for jobs which are permanently in demand, e.g., milkers on dairy farms• Odd exception for sheepherders

Options• Examine business to see if job/requirements can be redefined to relate to seasonal events• Try fitting into H-2A program to avoid H-2B cap issues• Develop complementary agricultural businesses or alternate locations• Explore H-1B or TN options for more skilled workers, such as Farm Manager/Landscape

Architect


Additional information on immigration issues, as well as updates on new developments, can be found on our web site at www.woh.com. Go to “Practice Groups” and select “Corporate and Professional Immigration”. At the bottom of our practice description is a link to other information and articles.

International Practice Group Leslie K. L. Thiele Scott T. DeckerWhiteman Osterman & Hanna [email protected] [email protected] Commerce PlazaAlbany, New York 12260 Seth R. Leech L.J. D’ArrigoTel: (518) 487-7600 [email protected] [email protected]: (518) 487-7777www.woh.com

The information in this presentation is intended as general background information on immigration law and visa categories. It is not to be considered as legal advice with regard to any current or future immigration application. Immigration law changes often and processing information becomes rapidly outdated. Please consult your immigration counsel before taking action on immigration matters.

Hiring Seasonal Workers: Using H-2A and H-2B Visas Effectively

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