Anticipating a Staffing Crunch? Here’s a Possible Solution

William H. ShawnCo-Managing Partner, ShawnCoulson

Every year, roughly 66,000 non-U.S. citizens are granted special visas to perform non-agricultural and non-highly skilled jobs in the United States under the U.S. Citizenship and Immigration Service’s H-2B program. The underlying program (which formerly included agricultural workers) started in 1952. While some employers that seek workers under this program fail to hire any, it can be a business lifesaver for those that are successful.

Applying for the Program

There’s an ongoing push in Washington to raise the quota on H-2B visas, particularly as worries about the COVID-19 pandemic begin to ease. The jobs that can be filled under the H-2B program must be full-time and temporary (no longer than nine months). Although hiring H-2B visa holders isn’t a simple process, thousands of employers still find the effort worthwhile.  

The next round of applications will be accepted for positions that begin as soon as October 1. If you’re interested in applying, start now because the process takes time. You might be able to bring H-2B visa holders on board sooner if they’re already in the United States and looking for new jobs.

Protecting Jobs

The primary goal governing the H-2B program is preventing foreign workers from displacing U.S. citizens. So, the program requires employers to establish that they’re unable to fill the positions with American workers. Chances are you wouldn’t be seeking to participate if you had an ample local labor pool. Toward that end, you can’t set higher standards for U.S. citizens than you do for potential H-2B workers for the same position.

According to a Department of Labor (DOL) fact sheet, “Employers must also continue to accept state workforce agency referrals and hire all qualified and eligible U.S. workers who apply for the job until 21 days before the [job] starts.”

Finally, you must not have laid off any U.S. citizen employees more recently than 120 days prior to bringing H-2B visa holders on board.

Safeguarding Foreign Workers

The second goal of the program is to protect H-2B visa holders. Here are some requirements employers must satisfy to meet that goal:

  • You’re obligated to cover the cost of the non-citizen’s visa and visa-related expenses, “inbound” and “return” transportation from and to the worker’s place of origin, and “subsistence costs,” defined as “lodging incurred on the employer’s behalf” and meals.
  • The compensation you’re prepared to offer to an H-2B visa holder must be the prevailing wage for that kind of job in your area.
  • Workers must be guaranteed a total number of work hours equal to at least 75% of the workdays in each 12-week period.
  • If you need to terminate any H-2B workers prematurely due to an unforeseen slowdown in your business, you’ll need to “make efforts to transfer the workers to comparable employment,” and
  • You need to state any minimum productivity standard required of H-2B holders to maintain their jobs.

Enforcing the Rules

A recent example of why the H-2B visa program has so many rules involves a Florida company that employed 29 foreign workers. DOL investigators discovered that the employer wasn’t paying the foreigner workers the proper amount based on their work hours. The company sustained a $56,806 civil penalty and was also required to distribute $81,139 in back wages.

Among other things, enforcement of the rules “protects [other] employers from having to compete with those who would gain an unfair competitive advantage by skirting the rules,” a DOL official stated.

Getting Started

To get the ball rolling — or possibly help you decide if hiring so-called “foreign guest workers” is the right choice — review the DOL’s Form ETA-9142B. That’s the application you need to complete to be certified to hire H-2B workers.

Form ETA-9142B asks whether you’ve contacted your state’s workforce agency to determine if it can link you with any U.S. workers who might apply for the jobs you’re seeking to fill through the H-2B program. It rarely happens, however. “U.S. workers turned down 93% of H-2B job offers in 2020,” according to a study by the Cato Institute, a Washington, D.C.-based think tank that’s pushing to streamline and expand the H-2B program.

Meanwhile, potential foreign workers have their own hoops to jump through to receive the visa from the U.S. Department of State and enter the United States to participate in the program. They can do so on their own or retain the services of a U.S. law firm that specializes in helping prospective H-2B workers navigate the system.

Final ThoughtsRecent experience shows that the ebbs and flows of the American workforce can sometimes be smoothed out with foreign guest workers. Even if the process of tapping this temporary labor source doesn’t make sense for you today, it’s worth keeping in mind as a potential manpower solution down the road.