H-2B Visa - How to Prove the Unavailability of Local Workers?
The following scenario is too common these days. A contractor is awarded a large contract, but finds he doesn't have enough workers to perform the job. He advertises the positions, asks around the community, talks with recruiters, always with the same result - no workers available.
Finally, as a last resort, he considers bringing in qualified skilled workers from outside the United States. When he floats this idea he is met with rabid opposition - everyone tells him it is legally impossible to import such workers. So he ends up violating the law by hiring undocumented workers, as a matter of survival. Something is wrong with this picture. While we will focus on the construction industry in this article the visa can be used and the rules apply across industry lines.
What is wrong with the picture is the misconception that importing skilled workers is legally impossible. This misconception has been perpetuated over the years by the likes of the U.S. Department of Labor (DOL) and even, more surprisingly, by over-cautious immigration lawyers. It is a perception that has so worked its way into the very psyche of the construction industry and the legal community, that there have even been calls on Capitol Hill for immigration reform and for new treaties between the US and Mexico to address the labor shortage problem. In fact, before the tragedy of September 11,,2001, former President George Bush was in the midst of holding high-level meetings with Mexican President Vicente Fox on the subject. These talks have long since come to a halt, like many other proposals, in the interests of Homeland Security.
Unfortunately, a lot of time and effort has been wasted trying to fix the labor shortage problem, and all the hysterics and calls for immigration reforms have been for the most part unnecessary. The truth is that there is actually a provision in the immigration law for importation of temporary skilled labor: the much-misunderstood "H-2B - Seasonal Worker Visa." This goal of this article is to demystify and clarify exactly what the H-2B visa is all about, and to offer some general information as to how a contractor might go about obtaining approval from the government for the H-2B visa to meet solution to their seasonal labor needs.
One of the basic requirements for the H-2B visa is to prove that there are no qualified US workers available in the market to fill the temporary and seasonal employment requirements. Proving the lack of availability of qualified US workers is generally one of the major burdens on US employers seeking temporary employees.
H- 2B - Obtaining A Temporary Labor Certification:
A contractor who seeks to bring skilled labor from outside the US to meet his short-term needs must first obtain a Temporary Labor Certificate for a specific job and for a specified number of workers from the US Department of Labor (DOL). He does this by presenting evidence to the DOL that his need for labor is temporary and that there are no workers available in the local labor market. Once the contractor has obtained the Labor Certificate, he files this with US Citizenship and Immigration Services (USCIS), which then authorizes the visas. The USCIS will deny any visa request that does not include an approved Labor Certificate.
H-2B - Temporary Need Defined:
A temporary need for an H-2B visa is defined in the applicable laws and regulations as a need that is less than twelve months. Additionally, the need must fall into one of the following categories: one-time need, seasonal need, peak-load need, or intermittent need. In the construction industry, the category that is most often used is the peak load need, which usually recurs annually. In any case, the contractor must be able to present documentary evidence of his temporary need when he files is application for Temporary Labor Certificate. Failure to maintain such documentation can be fatal to a case if you are asked for additional information (a Request For Evidence) or are the subject of a post-certification audit. Other documents that are helpful in establishing temporary needs for an H-2B visa are a detailed itinerary and any larger than normal contracts.
H-2B Proving Unavailability Of Local Workers:
Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days (including a Sunday). The DOL also requires that the employer open a job order with the State Workforce Agency (SWA) for a minimum period of ten days. Even with the current labor market, our experience has been that few, if any, qualified workers send their resumes to the SWA for referral. Many of those that do rarely show up for work if offered a job. In any event, the contractor must contact any applicant that appears to meet the minimum qualifications listed for the position. Once the recruitment period comes to an end (usually 14 days), the contractor submits the labor certification application together with a statement of recruitment results to the DOL and waits for approval of the Labor Certificate.
H-2B - Union Involvement:
An extra-congressional, internal DOL policy singles out the construction industry as having to get union clearance before the DOL will issue a Temporary Labor Certificate. This surely is a burdensome and discriminatory policy. If the union wishes to refer individuals, they must apply as individuals through the normal channels. The union may not simply send over a roster of names. Additionally, the union has only 5 days in which to make its referrals. This understanding is only preliminary. Total elimination of the union notification requirement is preferred by non-shop contractors seeking to employ alien labor.
The Congressional Mandated H-2B Cap:
There are currently 66,000 H-2B visas available every year. Because of the increase in demand for temporary workers this cap has been reached each year for the past several years. Also because of the increased usage of the category USCIS divided the number of visa (33,000 available beginning October 1 and 33,000 available on April 1 each year) so that both summer and winter industries can take advantage of it.
Contractors that take advantage of the H-2B visa to solve their seasonal labor needs will not only benefit themselves, but will benefit the labor market on the whole. They will not need to continually run afoul of the law by hiring undocumented workers. Instead, they can bring these same workers into the system (regardless of whether they come from Mexico or Canada or Europe or elsewhere in the world), use their valuable services for several months each year, and then let them go home for a few months until the next peak-load or seasonal labor cycle. At the same time, these same contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts due to lack of workers. In the meantime, the United States construction industry will have the time to find local solutions to the skilled labor shortage.
