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. with appropriate U.S. Immigration Citizenship Services (USCIS) work authorization.
Q: How are foreign nationals usually hired for construction and landscaping jobs?
A: Temporary immigration options for U.S. employment are very limited. One option is the “H-2B” visa category, which allows U.S. employers to bring foreign workers to the U.S. to fill temporary non-agricultural jobs including the construction and landscaping industries.
Q: How can an employer hire foreign nationals through the H-2B visa category?
A: In order for an employer to foreign nationals under the H-2B visa category, the employer must establish that: 1) its need for the prospective worker’s labor or services is temporary in nature—that is, based on a one-time occurrence, a seasonal need, a peak load need or an intermittent need; 2) there are not enough U.S. workers available who are willing and qualified to do the temporary work; and 3) the employment of the H-2B nonimmigrant worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Q: Must employers pay a certain wage in order to employ a foreign worker under an H-2B visa?
A: Yes. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable federal minimum wage, the state minimum wage, or local minimum wage to the H-2B non-immigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification.
Q: How does an employer help a foreign worker get an H-2B visa?
A: An employer must obtain a single, valid temporary labor certification application from 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 file a petition with the U.S. Citizenship and Immigration Service 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 H2-B 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 new work authorization year after year (maximum of three years) 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: No. The H-2B certification and H-2B visa are employer-, job- and location-specific, and as such, cannot be transferred from one employer to another. 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. During the first half of the USCIS fiscal year (October 1 to March 31), 33,000 H-2B visas are available. The final 33,000 H-2B visas are available during the second half of the USCIS fiscal year (April 1 to September 30).
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 be subject to inadmissibility to the U.S., based on how long s/he had been in the U.S. illegally. Specifically, the Illegal Immigration and Immigrant Responsibility Act of 1996 states that a person who leaves the U.S. after having been in the U.S. illegally for more than 180 days is inadmissible (not able to return to the U.S.) for three years, and a person who leaves after having been in the U.S. illegally for more than one year will not be able to return to the U.S. for a period of 10 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-2B visas that are granted, or creating a quicker and easier visa option for the construction and landscaping industries?
A: There has been no movement on current proposals being considered by Congress as part of an immigration reform package to 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. Therefore, employers must deal with the current constraints of the H-2B visa category.
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.