H2-B Process and In-take Form
The H2-B temporary foreign worker visa is a great solution for businesses or sub-contractors looking to fill gaps left by seasonal shortages in domestic labor. Hiring an H2-B Foreign worker must be tied to a temporary purpose or a specific event, such as a predictable portion of a your business cycle that requires more labor than usual. While the H2-B program is very useful, the paperwork involved can be complicated and tedious. Competent legal representation can prove invaluable when dealing with the multiple government agencies involved in regulating the H2-B visa program. The H2-B is a highly regulated program and has specific requirements to be eligible and successful. Before proceeding with the application process, a consultation is required where we will discuss your temporary needs, required wages/benefits, the recruitment process, and long term strategies.
#1 PREVAILING WAGE REQUEST
A prevailing wage request should be pursued around five months before the foreign workers are required. The department of labor considers geographical location and the type of work when making the determination. Almost always, the wages for foreign workers will be higher than local wages in the market. Determining if the wage rate is acceptable to you is one of the most important parts of the process for going forward with an H2-B Application. All employees with the same job will become subject to the same wage rate.
#2(A) STATE WORK FORCE AGENCY
Information gathered from the prevailing wage request will be used used to develop a job order, or job listing with the appropriate State Work Force Agency ("SWA"). This SWA's purpose is to advertise the position locally to people in their database before the job can go to foreign workers. The content in the job order, which includes details of the job and conditions, is directed by the department of labor, and must be written in a manner that complies with applicable regulations.
#2(B) Department of Labor
At the same time as the job order with the SWA, the applicant must submit and application for a seasonal labor certification from the Department of Labor (“DOL”). We will help you prove to the DOL that your operations require temporary workers to service a seasonal/high peak for labor. Also, we will help you argue that no American workers were able and willing to take the jobs. This process takes a minimum of 8 weeks.
#3 LOCAL ADVERTISING
The Labor Certification will be analyzed in the Department of Labor's Federal (Chicago) office and corrections may be requested to the language of the job order. Once changes are accepted and the application is approved, The Department of Labor will issue specific instructions for advertising the job. QCI Law or an affiliate will assist you in preparing the required advertising to send out but the client must place the ads. After advertising period, QCI Law will help the client submit a recruitment report and obtain the labor certification from the Department of Labor.
After obtaining approval from the Department of Labor, next step of the process is to file an H2-B application with the United States Citizenship and Immigration Service (“USCIS”). We will help you prepare applications for each of your foreign workers and file the petition with USCIS. A properly prepared application can be processed in as little as 3 weeks or can take up to four months. Once your petition is approved, the USCIS will send notifications to the US Consulate office in the home country of the foreign workers so that they can pick up their visas. The visas will be valid for the length of the labor certification which is typically between 2 to 10 months.
#5 Continued Compliance
After acquiring workers, employers still have responsibilities to keep records, provide reports, and maintain good conditions. Employers must either pay for or reimburse the cost of travel for the incoming H2-B workers and reasonable per-diem. Employers are expected to provide suitable living quarters for the H2-B workers which are subject to inspection from applicable agency. Employer must provide all necessary tools, supplies, and adequate worker’s compensation insurance per each H2-B employee.