Hiring Seasonal Workers:
Using H-2A and H-2B Visas
Effectively
January 14, 2009
Whiteman Osterman & Hanna LLP
Albany, New York
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?
Whiteman Osterman & Hanna LLP
THE PROBLEM OF ILLEGALITY
Basic rule: No visa problem can be fixed inside the U.S.
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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
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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
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
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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
Whiteman Osterman & Hanna LLP
H-2A VISAS - AGRICULTURAL
WORKERS: The Fast Track!
REQUIREMENTS
APPLICATION STEPS
TIMETABLE
DURATION
1. Job must be “agricultural
labor or services”
1. Place Job Order with
SWA and begin
recruitment; file with
USDOL Chicago
Pre-filing
recruitment
75 days prior
to need; File
45 days in
advance of
need
Granted for up to 364
days/ year, but usually
less
Deficiency
notice sent
within 7 days
COSTS
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
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 incountry agent to facilitate
visa issuance
Whiteman Osterman & Hanna LLP
Renewable for total of
3 years; re-recruit each
year
DOL: $100 per appl. +
$10 per job
USCIS filing fee: $320
Recruitment costs
Consular processing
fees $100 – $300
H-2A VISAS: CONSIDERATIONS
Definition of ‘agricultural employment’ expanded under new regulations
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`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
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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
Whiteman Osterman & Hanna LLP
DOL H-2A AMENDMENTS
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SWA role limited to job order and housing inspection
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Attestation-based system
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Pre-filing interstate recruitment
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Eliminates “50% Rule” (now “30-day Rule”)
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USCIS notification requirement
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New Prevailing Wage process (Form 9141)
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New document retention requirements: 3 years
Whiteman Osterman & Hanna LLP
USCIS H-2A AMENDMENTS
The new procedures also involve changes at USCIS:
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Allow “unnamed workers” on I-129
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1 petition for multiple consulates
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Need DOL Labor Certification Approval to file I-129
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30-day departure
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Notification in case of worker departure
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3 year maximum, interrupted by absence of 45 days or by 3 months
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H-2A limited to Mexico, Jamaica and 26 other countries
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Land-Border Exit System (Pilot Program)
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H-2A Portability if new employer is an E-Verify Participant
Whiteman Osterman & Hanna LLP
H-2A LABOR CERTIFICATION PROCESS
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File Form ETA 9141 (Prevailing Wage) with NPC
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File Interstate Job Order with SWA
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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
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File Forms ETA 9142, ETA 790, recruitment report with DOL Chicago 45 days prior to
need
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DOL will send deficiency notice within 7 days
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Updated recruitment report submitted prior to approval
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DOL must make determination 30 days prior to need
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DOL will refer applicants up to 30 days after need date – employer must hire U.S.
workers up to number of certified positions
Whiteman Osterman & Hanna LLP
H-2A VISA PETITION PROCESS (USCIS)
•
Petition Contents:
Form I-129
I-129H Supplement
Employer Support letter
Original Labor Certificate
$320 filing fee
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File with USCIS California Service Center
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Cannot include both named and unnamed workers on same petition
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No premium processing – USCIS will process within 1-2 weeks
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CONSULAR PROCESSING OF H-2A
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Request appointment with consulate through Consular Services Center (CSC)
via email
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Can substitute workers if necessary
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Complete consular application Form DS-160 on-line
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Pre-pay $131 application fee at bank designated by consulate (additional
$100 issuance fee due if visa approved)
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Required documents for interview:
Passport
Form DS-160
Proof of payment ($131)
Form I-797
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H-4 visas almost never issued to dependents
Whiteman Osterman & Hanna LLP
EMPLOYER OBLIGATIONS TO H-2A WORKERS
Required benefits to H-2A workers
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Provide free housing
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Pay inbound transportation and subsistence/out-bound transportation
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Guarantee ¾ of contract period
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Provide 3 meals/day at cost to worker or kitchen facilities
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Provide Workers Compensation insurance
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Provide copy of work contract/ETA 790 to H-2A worker
Tax and withholding requirements
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FLSA wage requirements not applicable - no overtime pay required
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Employer does not withhold SS or Medicare for H-2A workers, unless USC –
payments to H-2A workers NOT “income”
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Employer should report “wages” paid to H-2A worker on Form 1099-Misc
Whiteman Osterman & Hanna LLP
H-2A VISA CHALLENGES & STRATEGIES
H-2A Challenges
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Costly
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Does not directly include certain dairy farm workers – “Milkers”
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No year-round coverage
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Must hire any U.S. Workers referred by DOL up to 30 days from need date,
laying off H-2A workers in the process
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Must offer same benefits to all U.S. workers in H-2A positions
H-2A Strategies
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Include multiple farm-owned properties in one application
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Joint sponsorship by multiple farms or agricultural association
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Separate applications for Crop Workers and Winter Grounds/Maintenance
Workers
Whiteman Osterman & Hanna LLP
NEW H-2A DOCUMENT RETENTION
REQUIREMENTS
An agricultural employer must maintain the following records for
3 years:
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Recruitment: ads, recruitment reports and related documentation
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Evidence of Workers Comp
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Records of worker’s earnings
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Copy of Application
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Prevailing Wage Determination
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Request for Housing Inspection
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Evidence of compliance with housing and transportation obligations
Whiteman Osterman & Hanna LLP
DOL TRANSITION PROCEDURE
For need dates prior to 7/1/2009, a hybrid system is in place for
transition to the new system:
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File Form 9142 and ETA 790 with Chicago National Processing Center 45
days prior to need
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All activities required prior to filing under new regulations now completed
post-filing
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Recruitment Report submitted to NPC prior to approval
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NPC will determine prevailing wage
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NPC sends recruitment instructions
Whiteman Osterman & Hanna LLP
H-2B VISAS: CONSIDERATIONS
Must plan sufficient lead time for visa processing
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Dept. of Labor processing: 90 days, including recruitment
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USCIS: 30-60 days unless use $1,000 premium processing (15 days)
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Consular application: 30-60 days, depending on lead time for appointment
Applications may be “capped out”
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66,000 H-2 B visas per year / caps historically reached early in prior years
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“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
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Returning Worker Exemption not renewed
Whiteman Osterman & Hanna LLP
H-2B VISA STRATEGIES
There are strategies an employer can use to maximize their
ability to secure H-2B workers:
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May begin process up to 120 days in advance of need: new regulations help
level the playing field by eliminating State DOL
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Time start dates to Oct. 1 and April 1 to maximize availability
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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)
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Work with other businesses with opposite seasonal needs as tool to manage
cap: H-2B amendments/extension are exempt from the cap
Whiteman Osterman & Hanna LLP
H-2B VISAS: TEMPORARY WORKERS
REQUIREMENTS
APPLICATION STEPS
TIMETABLE
DURATION
1. JOB must be temporary:
- seasonal
- intermittent
- peak load etc.
1. Place Job Order with SWA
120-days prior to need
Start no
earlier than
120 days
before date of
need
Granted for up to
364 days
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
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
Whiteman Osterman & Hanna LLP
Renewable for total
of 3 years, or ad
infinitum for shorter
stays
Must recruit each
year
COSTS
USCIS filing fees:
$320; $150
Recruitment costs
Consular processing
costs ($100- $300)
DOL H-2B AMENDMENTS
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SWA role limited to job order: levels the playing field!
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Attestation-based System (Paper-based for now)
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Pre-filing recruitment
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USCIS Notification Requirement
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New Prevailing Wage process (Form 9141) submitted to NPC
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New Document Retention Requirements: 3 years
Whiteman Osterman & Hanna LLP
USCIS H-2B AMENDMENTS
•
Allow “unnamed workers” on I-129
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1 petition for multiple consulates
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Need Approved LC to file I-129
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30-day departure
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Notification in case of worker departure
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3 year max interrupted by absence of 3 months
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Reducing time outside the U.S. that interrupts 3 year accrual
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Land-Border Exit System
*
Limited to Mexico, Jamaica and 26 other countries
Whiteman Osterman & Hanna LLP
H-2B LABOR CERTIFICATION PROCESS
The new rules for H-2B labor certification require:
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File Form ETA 9141 (Prevailing Wage) with Chicago NPC
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Submit Job Order to SWA 120 days prior to need
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Advertising: 2 print ads (1 on Sunday);
Contact former workers
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Submit recruitment report to NPC within 2 days from job order end date
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Submit Forms ETA 9142, recruitment report and Employer Temporary Need
Statement to NPC
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NYSDOL will send audit/deficiency notice within 7 days
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Final Determination issued within 60 days of need
Whiteman Osterman & Hanna LLP
USCIS H-2B PETITION PROCESS
When DOL has issued the Labor Certificate, the employer can
submit the visa petition to USCIS
Petition contents
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Form I-129, I-129H Supp, Employer - Support letter
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Original Approved Labor Certificate Required
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Filing Fees: $320, $150 (Anti-Fraud), $1,000 (Premium Processing)
New rules
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May include unnamed workers in petition if out of U.S.
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No Association filings
Whiteman Osterman & Hanna LLP
DOL H-2B TRANSITION PROCEDURE
For need dates prior to 10/1/2009, the DOL has a hybrid
processing system in place
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Obtain prevailing wage from SWA rather than NPC
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Carry out all required pre-filing recruitment and activities
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File Form 9142 and supporting documents per new regulations
Whiteman Osterman & Hanna LLP
EMPLOYMENT-BASED PROCESS
LABOR CERTIFICATION
Form ETA 9089
PERM
8-12 months
VISA PETITION
Form I-140
ADJUSTMENT OF STATUS
Form I-485
GC ISSUED
Form I-551
5-14 mos.
CONSULAR PROCESSING
Problem issues
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“Green card” must be for a different job than H-2A/H-2B or cannot renew temporary visa
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Cannot file AOS or Consular Processing until priority date is CURRENT
End result
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Concentrate on temporary visas only until law changes
Whiteman Osterman & Hanna LLP
CONCLUSIONS
No effective long-term relief
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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
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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
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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
Whiteman Osterman & Hanna LLP
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
Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
Tel: (518) 487-7600
Fax: (518) 487-7777
www.woh.com
Leslie K. L. Thiele
lthiele@woh.com
Scott T. Decker
sdecker@woh.com
Seth R. Leech
sleech@woh.com
L.J. D’Arrigo
ldarrigo@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.
Whiteman Osterman & Hanna LLP