Hiring Seasonal Workers: Using H2A and H2B Visas Effectively

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Hiring Seasonal Workers  Using H-2A and H-2B
Visas Effectively
January 14, 2009
Whiteman Osterman Hanna LLP Albany, New York
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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?

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THE PROBLEM OF ILLEGALITY

• Basic 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 cant 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
  YEARS
• 12 months or more cannot return to the U.S.
  for TEN YEARS
• Cant fix visa status in the U.S., but
  cant leave to obtain new temporary or permanent
  visa status at US consulate ? permanent
  illegality
• Conclusion You cant fix the status of a worker
  who is illegal
• Dont 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

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

• Definition 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

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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

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USCIS H-2A AMENDMENTS

• The 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

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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

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H-2A VISA PETITION PROCESS (USCIS)

• Petition Contents
• Form I-129
• I-129H Supplement
• Employer Support letter
• Original 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

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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
• Passport
• Form DS-160
• Proof of payment (131)
• Form I-797
• H-4 visas almost never issued to dependents

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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

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H-2A VISA CHALLENGES STRATEGIES

• H-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

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NEW H-2A DOCUMENT RETENTION REQUIREMENTS

• An agricultural employer must maintain the
  following records for 3 years
• Recruitment ads, recruitment reports and
  related documentation
• Evidence of Workers Comp
• Records of workers earnings
• Copy of Application
• Prevailing Wage Determination
• Request for Housing Inspection
• Evidence of compliance with housing and
  transportation obligations

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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

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H-2B VISAS CONSIDERATIONS

• Must 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 2006
• 33,000 issued every six months helps
  availability for all seasons
• Returning Worker Exemption not renewed

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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

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H-2B VISAS TEMPORARY WORKERS
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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

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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

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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

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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

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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

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EMPLOYMENT-BASED PROCESS
LABOR CERTIFICATION Form ETA 9089
VISA PETITION Form I-140
ADJUSTMENT OF STATUS Form I-485
GC ISSUED Form I-551
PERM 8-12 months
5-14 mos.
CONSULAR PROCESSING
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
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CONCLUSIONS

• No 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

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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. Decker Whiteman Osterman
Hanna lthiele_at_woh.com sdecker_at_woh.com One
Commerce Plaza Albany, New York 12260 Seth R.
Leech L.J. DArrigo Tel (518)
487-7600 sleech_at_woh.com ldarrigo_at_woh.com Fax
[phone] www.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.