First off, We’ve Made an H2B Certification Process Series
We are making a four-part H2B Certification primer. The links below will be updated as we complete each section.
Part 1: (This post)
Part 2: Prevailing Wage Determination
Part 4: The USCIS and the I-129
And we’v also created a playlist of H-2B related videos that you can check out on our Immi Great Youtube channel.
If you’ve ever wanted to hear someone talk to you about what H2B Certification actually entails, then watch this video. Damjan Denoble and Trent Williams, our two attorneys, break down the process step by step and even add in stories from H2B Certification processes already past.
H2B Certification is (Still) Here to Stay
Next, as business immigration attorneys, we get asked all the time what effect the current administration will have on particular visa programs. Counterintuitively, the demand for certain programs, like the H-2B visa for temporary non-agricultural workers, has gone up. So that means that H2B certification is an important step to take for employers in certain industries who may otherwise be affected by tighter immigration controls but wish to stay competitive.
The H-2B Visa program is designed to allow employers to bring in foreign workers during temporary times of need so that their business can take advantage of its busy stretches. H-2B Visas are restricted solely to non-agricultural, unskilled labor, which often includes landscaping, construction, and resort employees.
For complex reasons, and perhaps for all too human ones, the H2B program has largely remained unharmed under the current administration (you may have heard that President Trump utilizes the H-2B program at most of his resorts).
This is despite the fact that the program has been controversial for much of its existence, up to the present day where labor reformers point to H2B as a wage killer. There is the issue of the H2B “cap” not being extended, but we can leave that for another post.
H2B Certification Helps Businesses Supplement Workers in Danger of Deportation
Since employers expect strong deportation efforts, employers in industries like construction, landscaping, and services are now looking more than ever to use the H-2B Visa program in their businesses to make up for a scarce supply of workers. While it is possible for an employer to tackle this application process without the aid of an Immigration Attorney, this post and the subsequent posts discussing the H-2B application process will give you an idea of the complexities and headaches that accompany an application.
H2B Certification Step 1: Determine Temporary Need for H2B
First, an applicant should determine whether their need is temporary. This isn’t as easy as you might think. There is plenty of material that you can find that will help you figure out if your need is temporary, but the main emphasis is that your need has a clear definable end in the near future. After showing that the need is temporary, you must then fit the employment need into one of four categories; One-Time, Intermittent, Seasonal, and Peak-Load. You’ll need to reference the Code to figure out which category your need falls into–and likely, your need will not fit perfectly into any of the categories. This part of the application goes into hundreds (and hundreds) of pages.
H2B Certification Step 2: Prevailing Wage Determination
After determining that your need is temporary in nature and fits into one of the above categories, you’ll be ready to move forward with the various application steps.
Accordingly, step 2 is to obtain a Prevailing Wage Determination. At this stage, an employer will need to provide a comprehensive description of the job(s) and a full list of areas that work will be performed. The employer will then receive a determination as to the minimum salary that it can pay its employees.
H2B Certification Step 3: Applying for Certification at the Department of Labor
After the Prevailing Wage Determination is Issued, an employer can move forward with its application at the Department of Labor level. This is done through a site called iCert. Through the iCert portal, an employer must fill out a 9142B Form.
This is a relatively simple form that has about 14 sections. However, the application is not complete without a lengthy list of attachments that must accompany the 9142. The worst attachment is the Statement Temporary of Need. A Statement of Temporary Need often ranges between 100 and 300 pages, and should include work contracts, employee records, payroll records, etc. Essentially any piece of information that demonstrates the employer’s need is temporary and fits into one of the four enumerated categories is included in the Statement of Temporary Need.
Expect Notice of Deficiency
Regardless of how perfect the applicant believes its application to be, a first time applicant can expect a Notice of Deficiency from TLC Chicago. These can vary in complexity, but could require the applicant to completely restructure its Statement of Temporary Need.
At this point, the Department of Labor could issue a rejection, in which case, an employer’s likelihood of succeeding at the USCIS level is practically non-existent.
H2B Certification Step 4: Recruitment and the Recruitment Report
But let’s assume that the DOL issues a Temporary Approval. After receiving this notice, an employer must begin local recruitment. Local recruitment must be pursuant to the Code, and includes advertising the position(s) in a local newspaper, applicable State Workforce Agency, worksites, and possible on the employer’s website. This can be a pricey process, especially for inexperienced employers.
In addition to advertising, the employer is responsible for giving every applicant a fair chance at the position. This often requires interviewing every applicant to ensure that all qualified local workers are given priority before an H-2B Visa is issued.
Once the mandatory recruitment period is over, then a Recruitment Report must be drafted and sent to the DOL. This Report must diagram all advertising and communications with interested individuals. If the DOL is satisfied with the recruitment efforts and the Recruitment Report, then hopefully it grants its approval.
H2B Certification Step 5: Applying for H2B Certification with U.S Citizen and Immigration Services (USCIS)
But, a DOL approval is not determinative of an approval from USCIS. As soon as DOL approval is granted, an employer should file an I-129 with USCIS.
The I-129 form is lengthy, but only certain portions apply to H-2B applicants, so be careful to fill out all applicable sections but no non-applicable sections, because either mistake will result in a Notice of Deficiency. And remember that 100-300 page Statement of Temporary Need? It will need to be placed in the mail with your I-129 and sent to USCIS.
H2B Certification Step 6: Consulate processing and transfer of workers
Even after this gauntlet, it is necessary to find your workers, get them through the consulate process, get them to your worksite, and then compensate foreign workers for travel expenses, etc. This “Step 6” is really an ongoing effort that requires a focus on detail, which many employers may find hard to stomach.
Should You do H2B Certification Yourself?
As an attorney that has been through several H-2B application cycles, I can’t imagine running a business and attempting to apply for an H-2B visa. Can you?
For a more detailed analysis on the various steps in an H-2B application process, check out our youtube channel. We’ll have several videos that discuss the steps mentioned above and will go through some of the pitfalls that we find most common.