Q: I’ve had trouble getting U.S. citizens to provide seasonal work for my landscaping business. Can I legally hire foreign workers?
A: Yes. Lawful permanent residents (green card holders) can legally work in the U.S. In addition, foreign nationals also may work in the U.S. if they have been authorized by the Citizenship and Immigration Services, and if they abide by the conditions of that employment authorization.
Q: How are foreign nationals usually hired for construction and landscaping jobs?
A: Temporary immigration options for U.S. employment are very limited, but there is an “H-2b” visa provision for seasonal, non-agricultural work that is often used by the construction and landscaping industries to fill seasonal needs.
Q: How can an employer hire foreign nationals through the H-2b visa provision?
A: The employer can hire foreign nationals by arranging for them to get H-2b visas, but only if it can be shown that: 1) the job is temporary (such as for a one-time, seasonal, peak-load, or intermittent need); 2) the employer has tried to recruit U.S. workers; and 3) the employer agrees to pay the prevailing wage for the work.
Q: Must employers pay a certain wage in order to employ a foreign worker under an H-2b visa?
A: Yes. The employer must certify that the H-2b worker will be paid at least the prevailing wage. The prevailing wage is higher than the federal minimum wage and is based on annual Department of Labor (DOL) surveys that determine the normal wage for each occupation in each major city.
Q: How does an employer help a foreign worker get an H-2b visa?
A: An employer must apply to the foreign labor certification division of the DOL. The DOL will certify the application only if it is convinced there are no U.S. workers for the position (after the employer has advertised in the local newspaper), that the job is temporary, and that the employer will pay the required wages. The employer then must ask the U.S. Citizenship and Immigration Services to approve the employment. Finally, the foreign worker must appear at a U.S. Consulate in the home country to obtain a U.S. visa. Generally, it takes three to four months to complete all of the steps necessary to obtain an H-2b visa; however, sometimes it takes longer because of government delays and because there is a quota on the number of H-2b visas that can be issued each year.
Q: How long does the H-2b employment authorization last?
A: Because the H-2b visa is for temporary work, the employment is usually less than a year, but in some cases it can be renewed for a longer period of time or the employer can request a new work authorization year after year for the seasonal or peak-load type of work.
Q: Can the employee change jobs after an employer has received the H-2b certification?
A: The H-2b certification cannot be transferred from one employer to another since it is issued only for a specific job opportunity. If the employee wants to transfer to another employer, the new employer must complete the certification process on the employee’s behalf.
Q: Are employers limited in the number of H-2b workers they can hire?
A: There is an overall limit of 66,000 H-2b visas that can be issued per year.
Q: Can a person who has entered the U.S. illegally get an H-2b visa?
A: Generally not. In some cases, a person can leave the U.S. and return on an H-2b visa, but a person who has been in the U.S. illegally for an extended period of time may not be able to return to the U.S. Specifically, the Illegal Immigration and Immigrant Responsibility Act of 1996 says that a person who leaves the U.S. after having been in the U.S. illegally for 180 days will not be able to return to the U.S. for three years, and a person who leaves after having been in the U.S. illegally for one year will not be able to return to the U.S. for a period of ten years. While there are exceptions, these rules prevent most people from returning to the U.S.
Q: Is Congress considering increasing the number of H-2bs that are granted or create a quicker and easier visa option for the construction and landscaping industries?
A: Proposals currently being considered by Congress as part of an immigration reform package include the creation of a guest worker program or the addition of special “essential worker” visas for jobs in industries such as construction, landscaping and hospitality.
However, legislation has not been passed. Therefore, employers must currently deal with the constraints of the H-2b.
This Law You Can Use information column was provided by the Ohio State Bar Association (OSBA). It was prepared by Sherry Neal, a partner in the Cincinnati office of Hammond Law Group.