April 2024 H-2B Visa Groups

At Williams Law, we represent H-2B Visa Clients across the country who seek to bring in temporary workers each year. This year, we represent clients in over one dozen different industries. Each of these clients are in need of temporary workers beginning in April 2024, and were hopeful that the H-2B Visa program might be answer to their labor woes.

Unfortunately, many of these H-2B Clients were not fortunate enough to receive favorable random group assignments from the department of labor. While many clients received Group A assignments, many more received assignments of Groups E, F or G. While we have no control over these assignments, Williams Law strives to provide each client with the information and counsel necessary to make informed decisions that can greatly impact their businesses for the upcoming season. With that in mind, this post is meant to provide our best estimate for each Group’s most likely options for the April H-2B Visa Cycle. As always, blog posts are not legal counsel and should not be considered as such — we always recommend that you consult your attorney, or that you reach out to us so that we can better learn the facts of your case and provide you with educated counsel.

Group A - Group A should be receiving Notices of Deficiency and/or Acceptance at this time. Some Group A applications have been processed and have received Notices of Acceptances and even completed local recruitment, while others have not received any correspondence at this time. All Group A applications should have a good chance to get to USCIS before the 33,000 H-2B Visas are allocated.

Group B - Group B will be next in line once all Group A applications have been reviewed. Group B applications may be processed before or after Group A applications that received Notices of Deficiency. Some Group B applications historically “beat the cap” and receive some of the first 33,000 H-2B Visas. Other Group B applications will likely be “capped out” - meaning the 33,000 H-2B Visas will be fully allocated prior to I-129 review. All Group B applications that receive DOL Temporary Labor Certification should have a chance to apply for Cap Relief Visas.

Group C - Group C naturally follows Group B. While some Group C applications MAY beat the cap and receive some of the first 33,000 H-2B Visas, the majority of Group C applications will be reliant on the Cap Relief visas. All Group C applications that receive DOL Temporary Labor Certification should have a chance to apply for Cap Relief Visas.

Group D - Group D historically will not have a chance to apply for the first 33,000 H-2B Visas before these visas are fully allocated to other Employers. Historically, all Group D applications the receive DOL Temporary Labor Certification should have a chance to apply for Cap Relief Visas.

Group E - X - Groups E - X MAY have a chance to apply for Cap Relief Visas that may be either “Returning Worker” or “Northern Triangle” H-2B Visas. It is difficult to predict which groups will be able to apply for and receive Returning Worker Cap Relief Visas and which groups will not receive their Temporary Labor Certifications prior to the Returning Worker Cap Relief Visas being fully allocated to other Employers.

While there is uncertainty for these later groups, these Employers may still be able to utilize what has historically been known as “Northern Triangle” Cap Relief. This category is now expanded to include Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. You can review the announcement here, or review the full temporary final rule.

Each year, we assist businesses with pivoting from bringing in any workers from any country they desire, to bringing in Returning Workers and/or Northern Triangle Workers. While the process is not overly complex, the finer details matter. If you are in one of these later groups and Cap Relief is likely the only option, please reach out to us and we will work with you to understand your options and help you navigate the nuances of the application process.

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April 2023 H-2B Visa Cycle Information

On December 7, the Office of Foreign Labor Certification held a Webinar for those interested in the H-2B Visa program for the April 2023 Cycle. The Webinar is a valuable tool for any H-2B stakeholder, and can be found in pdf form in its entirety HERE.

While the entire pdf is worth a review, this Post intends to hit some of the high points as well as items that we find vital to a successful H-2B Visa application. As always, if you have any questions, please do not hesitate to reach out to us at Info@trentwilliamslaw.com.

• The application window for all H-2B Visa 9142B applications with an April 1, 2023 start date shall begin on January 1 and shall end on January 3.

• All applications received during this 72-hour window will be randomly assigned a group letter within 5 business days of the final day of the window.

• Employers may not submit multiple applications for the same Job Position.

  • Same Job Position means the same job in the same area. It would be acceptable for multiple applications to be filed if each application applied to a different and distinct geographical area where work is to be done.

    • In the event that positions appear to be the same, there will be a notice sent to the Employer addressing this issue that allows for evidence to support the fact that the applications should be split rather than a single application.

    • Should the evidence submitted be found insufficient, the application with the earliest timestamp will be the application reviewed, and it will be viewed with its group assignment.

      • For example, if 5 applications are submitted and the application with the earliest timestamp is assigned Group D, the Employer will not have its application(s) reviewed further until Group D is timely.

• There will be a new “Registration” component for H-2B Employers. In theory, this will reduce the amount of evidence required each year (for up to 3 years) because an Employer Registration will serve as a “piece of evidence that the Employer has satisfied the temporary need requirement.”

  • While it is unclear exactly how much weight an active Registration Number will carry in the eyes of a Certifying Officer, hopefully this is a step toward an easier annual path for Employers.

  • In future Cycles, there will be space for a Registration Number input on the 9142B document.

  • If the dates of need shift, this could result in a Notice of Deficiency and a subsequent new Registration Number (that would remain applicable for 3 years).

• Applicants should “sign” all Appendix B documents with Pen. If digital signature is the only option, a document with a “drawn” signature rather than a digitally generated signature MAY suffice, but there is not clear commentary on this option.

• All 9142Bs should include not only the MSA or County where work will be completed, but also the City.

• There was a large section dedicated to Recruitment and the Recruitment Report. We have touched on this before, and it does not appear that anything new has developed. If you are unsure or a first time Employer, we would encourage you to purchase our Recruitment Report Template for just $99. Email Info@trentwilliamslaw.com to purchase yours today!

AS ALWAYS, IF YOU INTEND TO DEDUCT ANYTHING FROM THE WAGES OF AN H-2B WORKER, DISCLOSE THE DEDUCTION IN THE 9142B APPLICATION AS WELL AS THE SWA JOB ORDER.

If you have any questions about the upcoming H-2B Season, please reach out. Right now we’re getting calls from Employers, Agents and Attorneys. It MAY be too late for you to get started if you haven’t taken any preparation steps, but reach out anyways because there may be more options available to you or your clients than you realize!

Cheers to a successful 2023!

H2BLawyer - H-2B Visa 2023 Guide is Here!

The H2BLawyer H-2B Visa 2023 Guide is here and it is 100% Free. Whether you’re new to program and have questions, considering the program to meet your temporary labor needs, or someone who has used the program for the last 20 years, we are confident that this Guide will be information and valuable to you.

All you have to do is go HERE and Request your Guide or send an email to Info@trentwilliamslaw.com, and you will receive the Guide for FREE. And, for a limited time, if you mention the 2023 Guide, you will receive a FREE 30 minute consultation call.

Cheers to a successful 2023 H-2B Visa Cycle!

H-2B Visa Employer Series: The Dreaded Audit Investigation

Every H-2B Visa Employer fears an audit investigation. And, this fear is for good reason. Audits are time consuming and costly, and can take the time and attention of several employees to comply with the lengthy demands of an investigation. However, if the proper steps have not been taken during the H-2B Visa application process and during the course of an H-2B Visa season, this lengthy process can be followed by a lengthy list of consequences and penalties for an H-2B Employer. This Post will touch on several compliance items that arise throughout the course of an H-2B Visa application and H-2B Visa season that that can prove costly if overlooked or ignored. This list is far from exhaustive, and if you have any questions, please reach out to H2BLawyer at Info@trentwilliamslaw.com.

1. Prevailing Wage Determination

   This is the first step in the H-2B Visa application process, and it is the first item that can go wrong. Remember that the wages returned correspond with geographic areas. If a geographic area is listed on the Prevailing Wage, then it can be listed on the 9142B. And, if it is listed on the 9142B, then the Employer must pay the HIGHEST of all geographic regions listed — even if workers never actually complete work in that geographic area once the H-2B employment begins. For example, If Nashville has a $15.00 PWD and is listed in the 9142B, but all work is actually done in Mt. Juliet, which has a $14.00 per hour PWD, then $15.00 is the rate that all work must be paid - even if the worker never physically steps foot in Nashville.

2. Job Order and 9142B

   The State Workforce Agency Job Order and the 9142B are the primary governing documents for how H-2B Visa Employers must treat H-2B Visa Beneficiaries. In addition to the wage rate, and Employer must abide by ALL other items listed in these documents. Such as the geographic locations (workers cannot work somewhere not listed), job description (worker duties cannot change once they are in the country), deductions (items may not be deducted unless disclosed).

   Deductions are a BIG hiccup for many Employers. Many Employer do not intend to provide housing and do not want the responsibility of providing housing and deducting an appropriate amount from each Beneficiary’s wages. However, housing can be quite difficult to secure for temporary workers, and once this reality becomes clear to an Employer, an Employer may decide to help out its workers by signing a lease, paying a deposit, etc., and then deducting an appropriate amount from wages. Most workers will even execute a binding lease agreement that clearly states what amount will be deducted from each paycheck, and will require a signed statement by the Beneficiary acknowledging that this is their choice and that they request this be done. Unfortunately, this can still result in penalties for an Employer because this deduction was not previously listed on the Job Order and the 9142B.

3. Local Recruitment

   We cannot stress this enough…RECRUIT LOCALLY. If an interested individual contacts your company about an H-2B position, RESPOND. If they ignore your response, document it. If they respond to your response, INTERVIEW. Regardless of what their résumé says, interview an interested individual and see if they might meet the criteria for the position(s). If they interview and do have the skills/experience for the position(s), HIRE.

   We understand the current difficulties facing Employers. It is hard to find workers who are interested. It is harder to find workers who will accept a job offer. It is near impossible to find workers who will actually show up for their first day of work. We understand. But, if you want to fully comply with H-2B Visa requirements and avoid potential penalties, HIRE.

   And, if you don’t interview or hire, document the WHY.

   And, this same train of thought applies to and former workers who you have laid off. Most H-2B Visa Employers do not have workers who were laid off (without cause), but if you do, then reach out to them and give them every benefit of the doubt and interview/hire them if they meet the requirements of the position(s).

   And again, document the process. In the event of an audit, it is not always about whether the correct steps were taken, but whether an Employer can provide evidence of this compliance.

4. Departing Workers

   While it is not incredibly common that an H-2B Visa worker will abandon their H-2B Employer, this does happen. It may also be the case that an H-2B Visa worker needs to return home for some acceptable reason. And, it is entirely possible that an H-2B Employer may choose to terminate an H-2B Visa worker. While all of these scenarios are permissible, there are compliance steps that must occur, such as notifying the proper authorities of the change in circumstances. Additionally, records of this notification should be retained and produced in the event of an audit investigation.

5. Record Keeping

   As mentioned above, an audit is not always about whether the correct steps were taken, but whether an Employer can provide evidence of compliance. Below is a quick list of items that require detailed and accurate records and will be requested during an audit investigation:

   1. All H-2B application documents

   2. Evidence of local recruitment efforts and results - probably an updated Recruitment Report as well

   3. Proof that visa costs, travel, daily subsistence, etc., were paid for or reimbursed

   4. Wage statements to all H-2B workers to demonstrate the proper wage was paid, the proper hours were worked, and no improper deductions were taken

   5. Evidence that local workers in a similar position were not treated as inferior to H-2B workers. Ex) H-2B workers receive a monthly bonus, but local employees do not have such bonus

   6. Work Schedule to demonstrate that hours work mirror hours paid and that no work was done outside of the disclosed geographic area(s)

   7. Evidence of departed worker notifications to clearly establish the date on which a worker’s relationship with the Employer has ended and thereby ended an expectation of hours and wages

Audits generally occur because a domestic employee, an H-2B worker, or a disgruntled former employee lodges a complaint, or is able to convince other individuals to lodge complaints against an Employer. For that reason, every H-2B Employer should conduct themselves in a professional manner, and should fully comply with the requirements of the H-2B Visa program. While some complaints are impossible to avoid and some audit investigations are impossible to avoid, the items above will help an H-2B Employer prepare in case a dreaded audit investigation arises for any reason.

If you are worried about any actions or record keeping, and want us to provide an Opinion on any matter, please reach out to us and we will evaluate your practices to help you determine whether you are prepared in the event of an audit.

Thank you for tuning in to the H2BLawyer H-2B Visa Employer Series. We are confident that this series can help your company, your agency, or your law firm in the upcoming H-2B Visa Cycle. At this time, we intend to convert the H-2B Visa Employer Series into a single-document Ebook that will be made available for free to all interested Employers, Agents and Attorneys.

Cheers!

-Trent Williams

H-2B Visa Employer Series: I-129 and USCIS Approval

Once an H-2B Visa Employer receives a Temporary Labor Certification, they may proceed to USCIS and file an I-129 with hopes of receiving USCIS Approval. While the I-129 document itself is straight forward and relatively easy to understand, there are various pitfalls that can derail an application and result in a Request for Evidence or even a Denial. While this post will touch on several things that could go wrong and how to avoid these pitfalls, we will caution you that this list is not exhaustive, and we would encourage you to speak with a professional before submitting your first I-129 packet.

The Process

In order to obtain USCIS approval, an Employer must submit an I-129. This document must completed including the applicable items from the H Supplement (within the I-129). But submitting an I-129 and only an I-129 will not result in your application being accepted for processing. The rest of this section will discuss what to include in your I-129 application packet - and while most certifying officers likely would not require ALL of these documents, we like to include them just in case!

1. Cover Letter - We always include a cover letter to let the certifying officer know what should be in the packet that we are sending. Occasionally an item may be overlooked because it blends in with other documents in the packet. And without a detailed list of all items, this might result in an improper Request for Evidence. So we like to tell the officer everything that is in the file.

2. G-28 Document - This won’t apply to all applications, but as attorneys, we include a G-28 document as evidence that we are authorized to correspond on behalf of the Client.

3. I-907 - An I-907 is not technically required. But we ALWAYS file an I-907 for premium processing. Receiving a response within 15 days works a lot better when you’re trying to beat the cap than a response within “1.5 months”.

4. I-129 - The I-129 itself is obviously critical to a successful I-129 packet. The form must also be an accurate reflection of the information contained in the Temporary Labor Certification. Again, this document is fairly straight forward, but we will discuss a few items that tend to trip up employers who are new to the program as well as employers who may be attempting to extend workers transfer workers from another employer.

5. Temporary Labor Certification Packet - This means everything that was previously submitted to the Department of Labor with your 9142B application. The 9142B, State Workforce Agency Job Order, Recruiter Details, Recruitment Report, and Statement of Temporary Need.

   While this may not be required by all certifying officers, we firmly believe that if we provide all of this information along with the I-129, it removes some of the guesswork and contributes to our high success rate of USCIS Approvals (without Requests for Evidence).

Once we have all of these items completed, we send them to the correct Processing Center. Don’t just guess which Center your application should go to based on which one is geographically closer to your worksite. While this may work in identifying which Processing Center is correct, it can also be incorrect and result in USCIS returning your entire packet rather than accepting and reviewing the application on the merits.

Pitfalls

Again, this list is not exhaustive. Do not rely on this list as an exhaustive list! But, here are a handful of pitfalls that we have identified that can result in USCIS returning your I-129 packet or issuing a Request for Evidence.

1. Incomplete Packet - Make sure that you send all items related to your Temporary Labor Certification. Include the Certified 9142B and ALL appendices. Failure to include just one appendix can result in major delays. Even if you mail your application packet via overnight shipping, USCIS will return it via USPS - which would be fine, but as we know, time is of the essence when we are dealing with H-2B Visa applications.

2. Inconsistencies - All information from the 9142B should be mirrored by the information in the I-129. If something has changed from the time you filed your 9142B to the time you are filing your I-129, make sure that you account for and possibly explain why there is a discrepancy.

3. Naming Beneficiaries - If you are filing for New Employment of Beneficiaries from a foreign country, “naming” these Beneficiaries in your I-129 is (1) not required, and (2) not recommended. This creates more opportunities for error, decreases the likelihood that you will be able to bring in the full number of workers certified by the Department of Labor. There are other reasons that are harder to explain in a blog post or a Ebook, and we are happy to discuss any questions this point may cause.

4. Incomplete I-129 - In contrast to number 3, if you are seeking to extend a Beneficiary or possibly transfer a Beneficiary from another H-2B employer to your employment, there are additional documents that are required because this time you must “Name” each Beneficiary, and this creates the requirement that information and documentation be provided for each Named Beneficiary. This includes information / documentation of birth dates, addresses, I-94 travel records, Passports, etc.

5. Wrong Processing Center or Check Information - We cannot stress how important it is that (1) the I-129 is sent to the correct processing center. Before you send your application, please check this out, and (2) the correct amount of $$$ is sent to the “U.S. Department of Homeland Security”!

This concludes the H-2B Visa application process. If everything submitted in the I-129 packet is correct, the application will be accepted for processing and a receipt number will be issued. Once a receipt number is issued, you will be able to check the Case Status online and will be able to see if there is a Request for Evidence mailed to you. If the I-129 is Approved, then you will be notified by email first, then I-797 documents will be mailed to you and/or your attorney/agent, and you will be able to fully recruit potential Beneficiaries.

While this is the end of the H-2B Visa application process, the H-2B Employer Series will have one final post in which we will discuss Audit related matters. Recently, we have noticed an uptick in audit investigations. This, coupled with the announcement of the Worker Protection Taskforce, leads us to believe that program compliance and record keeping is more vital than ever, and we look forward to providing you with a few insights in our next Post.

-Trent Williams

H-2B Visa Employer Series: Recruitment Requirements

Welcome back to the H-2B Visa Employer Series. Today’s Post will discuss the H-2B Visa program’s local recruitment requirements. Every Employer who receives a Notice of Acceptance from the Department of Labor must then recruit domestic workers and submit a formal Recruitment Report in order to receive a Temporary Labor Certification and proceed to USCIS. For a limited time only, we will be offering a customizable Recruitment Report Template for only $99 that can be requested at info@trentwilliamslaw.com.*

How, When and Where to Advertise

Employers must recruit/advertise for local workers through a variety of channels. The State Workforce Agency Job Order that was submitted as part of the 9142B application is the Job Order that is used for all advertisements, both local and foreign.

1. Seasonal Jobs Website - The Job Order is automatically activated upon your Notice of Acceptance.

2. State Workforce Agency - The Job Order is automatically activated upon your Notice of Acceptance.

3. Contacting Former Employees - “The employer must contact (by mail or other effective means) former employees whom it employed in the occupation at the place of employment during the previous year, inform them of the terms of the job order, and solicit their return to the job. The employer is not required to contact former employees who were dismissed for cause or abandoned the worksite.”

   For most Employers, this is not an issue, because most Employers would prefer to have a former U.S. employee who was not dismissed for cause or did not abandon the worksite. However, if there are workers of this status, Employers should provide them with notice of the opportunity and a copy of the Job Order so that the details of the opportunity are clear.

4. Employer Website - Some Employers will need to contact a bargaining representative, but if this is not applicable, there are alternative recruitment requirements. While there are other ways to satisfy this requirement, almost all Employers choose to advertise on their website. Almost all Employers have an “Employment” or “Opportunities” page on their website, and uploading the Job Order to one of these pages (for 15 days) satisfies this recruitment requirement.

5. Physical Locations - If an Employer does not have an active website, they may advertise in two physical locations in which the Job Order is likely to be seen by potential local workers. For example, a landscaping company might advertise at a local lawn mower store.

6. Additional Recruitment - Sometimes the Office of Foreign Labor Certification (OFLC) will instruct Employers to conduct additional recruitment. This isn’t as common, but be aware that it does happen and cannot be ignored because it wasn’t required in a previous cycle, so be sure to read the Notice of Acceptance closely to determine if this is applicable.

Recruitment Efforts must take place for a minimum of 15 Days, after which time, a formal Recruitment Report must be filed either by email or via FLAG (recommended).

Treatment of Local Workers

Employers must always provide a fair opportunity for employment to local workers. This includes responding to inquiries, interviewing, and hiring local workers who meet the criteria of the Job Order. Not only do these requirements exist, Employers should ALWAYS keep diligent records of their correspondence with potential workers and the outcome of each potential hire. This is beneficial for an accurate and complete Recruitment Report as well as responding to a potential audit in the future.

A key point to remember is that the Job Order is the governing job description. If the Job Order states that 6 months of experience is required, and an applicant doesn’t have any applicable experience, then obviously an Employer is not required to hire the potential worker (but they should provide this information in the Recruitment Report). However, if the position requires no experience or education, an Employer might be obligated to interview/hire the potential worker barring another lawful reason for choosing to not hire the interested local worker.

The Recruitment Report

Following local recruitment, a formal Recruitment Report must be submitted. This can be done by email or via FLAG. The Recruitment Report must fully and accurately provide ALL INFORMATION about the recruitment process. From the methods of recruitment to the local workers who inquired, who were interviewed, who were hired or not hired, etc., the Recruitment Report should include all of this information as well as information about which required items noted in the Notice of Acceptance are not applicable, and why the item(s) is not applicable to this Recruitment Report.

The Recruitment Report is essential to receiving a Temporary Labor Certification, and errors or missing items can result in a Request for Information, resulting in delays that can be detrimental to any H-2B Visa application. Further, discrepancies in recruiting and Recruitment Reports can prove to be quite costly in the event of an audit investigation, which is why for the first time and for a limited time, we are offering a customizable Recruitment Report Template for only $99!

*We reserve the right to withhold our Recruitment Report Template at our discretion.

-Trent Williams

DHS to Supplement H-2B Cap

On October 12, 2022, a release was published to announce that nearly 65,000 additional H-2B will be made available for the 2023 Fiscal Year. While the full article can be reviewed on the DHS website, this Post will break down a few of the details and what this could mean for your business. Our goal is to do so in the most concise form possible, and if you have ANY follow up questions, we advise you to review the full announcement or reach out to us at Info@trentwilliamslaw.com.

• 64, 716 is the exact number of H-2B Visas that will be made available (in addition to the standard 66,000 visas);

• Some of the additional visas will be made available for October 1, 2022 Cycle. An exact number has not been announced;

• Some of the additional visas will be reserved for the April 1, 2023 Cycle. An exact number has not been announced;

• Of the 64, 716 H-2B Visas, 44, 716 will be reserved for “Returning Workers” (from any eligible country);

• Returning Workers means a worker who has held H-2B status within the previous 3 years;

• The remaining 20,000 will be reserved for workers from the countries of El Salvador, Guatemala, Honduras and Haiti (there is no Returning Worker requirement for these countries);

• It has not been announced when the H-2B Visas will be released for the “capped out” October employers nor when DHS intends to release the Visas allocated to those who are “capped out” of the April Cycle;

In addition to the details of the Cap Relief efforts, the announcement also discussed the creation of the H-2B Visa Worker Protection Taskforce, which it coined the “Taskforce”. The Taskforce will strive to uphold the regulatory standards of the H-2B program and reduce the frequency of misconduct by H-2B employers. Specifically, the Taskforce will focus on

• “threats to the H-2B program integrity”

• “H-2B workers’ fundamental vulnerabilities, including limited ability to leave abusive employment without jeopardizing their immigration status”

• “the impermissible use of the program to avoid hiring U.S. workers”

  Closing Thoughts

  This is a step in a positive direction. While the visas are still not enough to truly match the demand of the H-2B Visa program, almost 65,000 ( plus 66,000) visas is better than the current 33,000 per Cycle with the hope of Cap Relief at some late point in the season. However, at this time it is still unclear when the Cap Relief Visas will be available to the H-2B Employers who had a date of need in October ‘22 or will have a date of need starting in April ‘23 but are Capped out of the initial 66,000 visas. While the announcement stresses the goal of addressing the needs of American businesses, it is unclear at this time whether this announcement will in fact result in expedited released visas, or whether there will be delays similar to those witnessed in April ‘22, October ‘21, and April ‘21 Cycles in which despite announcements of additional visas, no visas were made available until months after designated and certified dates of need.

  In regards to the Taskforce, we will discuss this in further detail later in our H-2B Visa Employer Series when we discuss audits.

  As always, if you have questions about the H-2B process, we encourage you to check out our H-2B Employer Series, which will resume on Monday, October 17. Or, you can reach us at Info@trentwilliamslaw.com or follow H2BLawyer on twitter.

  -Trent Williams

H-2B Visa Employer Series: Form ETA-9142B (Temporary Labor Certification)

If you have followed the Williams Law Blog, or subscribed and received our free Ebook powered by Frontera Tech, then this Post will seem very familiar. Rather than creating a new post from scratch, we have updated a post from 2021 that remains very accurate and informational.

Form ETA-9142B is a vital step in the H-2B application process, and other than the limited number of visas, proves to be the biggest issue for new Employers, Agents and Attorneys as well as seasoned member of the H-2B Visa community.

Part I. Form ETA-9142B

Similar to the ETA 9141 (PWD), the 9142B is filed on the Foreign Labor Application Gateway (FLAG). The 9142B may be filed as many as 90 days but no less than 75 days prior to the requested date of need. Through FLAG, the Employer (or agent of the Employer) may actually apply the PWD document to the 9142B to make sure that relevant information is transferred. While this does save some time, double check all of the information! While this is still the technical filing timeline, in recent Cycles, the 75-90 day window is inapplicable. Rather, there has been a 72-hour window implemented in which all applications received are considered timely and are placed into a randomized grouping which determines the order in which an application is reviewed/processed rather than the first come first serve method that used to take place and cause nightmares for all of us involved in the application process.

In addition to transferred information (such as Employer Name, Worksite Address, Etc.), the Employer must designate the exact number of Beneficiaries that it desires. Additionally, this is the first time that the Employer designates the exact window of need for these Beneficiaries. And then, the Employer is given a 4000 character text box to provide its Statement of Temporary Need (attachments or a more lengthy Statement may be attached as well). This section is the most important section to the entire H-2B Visa application. And while I will get into common pitfalls later in this Post, it is essential that Employers give Section B of the 9142B the care and attention it warrants.

Following Section B, there are multiple sections that again are auto-filled from information provided in the PWD. However, Section F is the beginning of information not previously provided. The Employer must provide further information about the position. Such as a work schedule, total expected weekly hours, and whether housing will be provided to name a few. And, unfortunately, there is little flexibility when creating a work schedule with varying daily hours. Section F also provides the Employer space to upload a Job Order for the position. This Job Order must comply with the Employer’s State Workforce Agency (SWA) guidelines. One of the first things that an Employer or agent should do is contact their SWA to acquire this document and to acquire the proper e-mail address or method of submission for the Job Order - that’s right, the Job Order must be sent to the SWA as well as submitted via FLAG. And make sure you include ALL the requirements in the Job Description, such as “single workweek” “tools provided at no cost” and “daily subsistence provided” to name a few.

The remainder of the 9142B is fairly straight forward. Employers must provide information about additional worksites, foreign recruiters, and supplemental documentation I’ll address below. As discussed in our previous post, if a worksite has returned a prevailing wage that is too high and you would prefer for H-2B workers to not work in that area, you may exclude it from your 9142B (even if listed on the 9141).

Part II. Supplemental Documents

• Employers may attach a Statement of Temporary Need (discussed further below).

• Employers may attach documents/evidence that supports a Statement of Temporary Need

• Employers must attach a Job Order

• Employers must attach Foreign Recruiter Information (if applicable)

• Employers must attach a signed and dated Appendix B

• Agents may attach a G-28

Part III. Common Pitfalls

Below is a list of common pitfalls/mistakes that Employers, agents, attorneys, etc., make during the filling out and filing of the 9142B. Sometimes these can go unnoticed more often, each of these will trigger a Notice of Deficiency (NOD), that delays Certification or leads to a Denial of an H-2B Visa application. While this is not exhaustive and is general in nature, these are items that every Employer should consider prior to filing the 9142B.

• Inconsistent Information: Information must be consistent from section to section and document to document.

  For example, if the 9142B states that “Beneficiaries will work M-F” but the Job Order states that “Beneficiaries will work M-F and sometimes Saturday…” then a NOD would likely be issued due to the inconsistency.

• Outdated Document: Always pay attention to the version of the document being submitted. The Appendix B must be the proper version. Additionally, an Appendix B must be signed and dated recently, i.e. an Appendix B from a prior year is unacceptable, and a NOD will be issued. And as a reminder, documents linked in this Post MAY BE OUTDATED at your time of reading - double check!

• Improper Wage: The Wage on the PWD is not the wage that must be paid if there are multiple worksites with differing PWDs, and a PWD for one of those worksites is higher than the PWD for “Worksite 1”

  For example, Worksite 1 is the Employer’s base city, let’s say Nashville, TN. PWD for Nashville is $14.00 per hour. But the Employer also has worksites in Franklin, TN. Franklin may have a different PWD, and that PWD may be $15.00 per hour. Instead of paying different rates depending on the location of the project, the Employer must pay the Beneficiaries $15.00 per hour for all worksites. And, this wage must be designated in the 9142B. But remember, worksites included in the 9141 do not have to be included in the 9142B if you have decided that H-2B workers will not work in a particular area/worksite.

• Failure to Provide Sufficient Evidence Part I: Employers must request a specific number of Beneficiaries. Often times, Employers must provide extensive evidence explaining why this is the proper number. Sometimes this means providing contract after contract demonstrating projects scheduled for the dates of need, and sometimes it means providing years of payroll records demonstrating the hours worked by each employee. It can also mean a detailed description of the Employer’s internal operation explaining why a certain number of Beneficiaries is needed.

  For example, if the Employer is asking for 10 Beneficiaries, then the Employer might need to prove that during the last two years, its 30 permanent workers all worked overtime hours consistently during the dates of need, and that it allocates 10 workers to each project. Then it might need to show that during the dates of need for the upcoming season, it needs an additional 10 Beneficiaries to zero out the overtime hours, and allow a fourth team of 10 workers to operate, which wouldn’t be possible without 10 Beneficiaries. (Complicated, I know.)

• Failure to Provide Sufficient Evidence Part II: Employers must also explain in the Statement of Temporary Need how the temporary need is “Temporary” and which classification is proper; Seasonal, Peak Load, Intermittent, or One-Time. Employers must not only show that workers are working overtime, or that there are additional contracts for the coming season, but the Employer must also show that this is not a permanent shift. Employers must show, through evidence, that October – August are busy and workers are needed, while simultaneously showing that August – September is slower and Beneficiaries are not needed (for example). (Complicated, I know.)

• A Labor Shortage is not Enough: Every Employer that considers the H-2B Visa program “can’t find workers”. This is the reality. It is not that Employers pay H-2B Beneficiaries less money or that they just want to hire foreign labor for some other reason. The reality is that Employers in the H-2B program simply cannot find qualified and consistent labor to meet the temporary need. And while every Employer should note this in the Statement of Temporary Need, relying on this labor shortage will result in a NOD. The Employer must first show the need is temporary and then show that it falls into a specific classification. An Employer who relies too heavily on the fact that there “aren’t enough workers,” without providing the evidence mentioned above will almost always receive a NOD.

Part IV. Conclusion

Employers should approach the 9142B with extreme caution. A strong 9142B and Statement of Temporary Need can at times almost guarantee a successful H-2B Visa application, but any of the pitfalls mentioned above can result in a Notice of Deficiency that can delay processing and put Employers a step behind other applicants at a very early stage of the process. While I always prefer to work with clients from start to finish, I do consult with Employers and Attorneys who want to take the lead with their H-2B Visa Application but know they can benefit from professional oversight. If Anything discussed in this Post sounds like what happened to your application in a past Cycle or if you want an evaluation of your 9142B or Statement of Temporary Need, please reach out at info@trentwilliamslaw.com so that we can increase your chances of a successful H-2B Visa Application in 2023.

*Some documents provided via links may be outdated and readers should always check to make sure they they use the current edition.

-Trent Williams

H-2B Visa Employer Series: Form ETA-9141 (Prevailing Wage Determination)

Welcome back to the bi-weekly H-2B Visa Employer Series presented by Williams Law Pllc, home of @H2BLawyer!

In today’s Post, we will be discussing the Prevailing Wage Determination. What is it? Where do you file it? When do you file it? And, what to do if you don’t like it.

What is the Prevailing Wage Determination?

The Prevailing Wage Determination is the wage rate that all H-2B employers must pay to its H-2B beneficiaries. Employers are required to file Form ETA-9141 and obtain a Prevailing Wage Determination (except in emergency circumstances) prior to filing an H-2B application. Form ETA-9141 must include a full description of the job as well a disclosure of all areas in which work is to be performed by an H-2B beneficiary. If the Prevailing Wage Determination does not include a location or duties/responsibilities, then an employer should not require a beneficiary to perform that particular type of work or work in the unlisted location, or the employer could be subject to penalty.

However, an employer should be strategic about their explanations and strategic in deciding what duties to have a beneficiary perform. For instance, if an employer performs landscaping or hardscaping work which sometimes includes electrical installation, the employer should know that if (1) a beneficiary will perform this work, then it should be disclosed, and (2) if electrical work is disclosed, then a wage rate will be higher than other types of landscaping labor. So, an employer should consider if it is worth a higher rate to have additional worker(s) who can perform this work, or if it would be better to allocate H-2B workers to other areas of need that would not carry a higher wage rate. These are matters that can become quite tricky, and we always recommend taking advantage of a consultation with ourselves or another attorney prior to filing your first Prevailing Wage Determination for these reasons.

Where to file the Prevailing Wage Determination?

The Prevailing Wage Determination application, Form ETA-9141 is filed on the FLAG portal. Users will need to create an account to access FLAG. Once an account is created, the Prevailing Wage Determination can be created through the portal. While it is always a good idea to fill out an ETA-9141 or have a client do so beforehand, the application is filled out and submitted via FLAG rather than by emailing or uploading a pdf version. While there may be work arounds to this, we strongly encourage all employers, agents and attorneys to operate fully though FLAG.

When to file the Prevailing Wage Determination?

Generally, we advise employers to file a Prevailing Wage Determination application no later than November 1 if they are applying in the April Cycle. We advise this for two reasons. (1) Prevailing Wage Determinations are instantly returned. A typical return time is approximately 30 days. Meaning that a Prevailing Wage filed on November 1 is likely to be returned by December 1. Which brings us to point 2. (2) Prevailing Wages sometimes need to be refiled. Especially for first-time applicants, a Prevailing Wage Determination may come back higher than expected. In the example above, you might receive a prevailing wage of $25.00 per hour for a position you considered to be “entry level landscaping labor'“ — however due to the electrical work, it is classified as “electrician” which results in a considerably higher hourly rate. In the event something unexpected like that occurs, you may want to remove or amend some of the job description to obtain a lower rate. If you do not file your first Prevailing Wage Determination application early, you will simply not have time to amend and file a second application before your ETA-9142 must be filed.

What to do if you don’t like your Prevailing Wage Determination?

As mentioned above, it is entirely possible that your Prevailing Wage Determination will not come back as expected. Maybe your application was classified as “electrician” instead of “entry level landscaping labor” or you are attempting to find an “Assistant” but you included details of the work to be assisted with and now the Determination has returned as if the “Assistant” is the lead of more complex projects. Or, perhaps one particular geographic location has a much higher wage rate than the other locations (you have to pay that rate for all work!). These are all realistic outcomes for a Prevailing Wage Determination, and below we will attempt to address each hypothetical scenario.

Misclassification

In the event that your application has been classified and you believe this to be incorrect, a full analysis of why it was classified as such is necessary. For instance, did you include electrical work that resulted in an “electrician”? If so, your options are (1) accept the higher wage rate, or (2) file a new ETA-9141 with an amended job description.

In the event that you attempted to describe an “Assistant” position, but the wage returned more closely resembles that which the person being assisted might earn, you can generally request that the form be re-evaluated and you are given a chance to explain why you believe the rate to be incorrect. While this is an option that is available, it is time consuming. And, many times the second rate returned will still not be as low as what you may expect (speaking from experience).

Location

While it may seem that an application covering an acceptable geographic area would result in very similar wage rates due to proximity, this is not always the case. For instance, some areas result in several dollars per hour higher wage rates. And, if that area is then listed as a worksite area in your ETA-9142 application, then the highest wage rate of all the worksite areas must be paid for all work to be done, resulting in several thousands of dollars difference in wages.

An employer should always remember that just because a geographic location is listed in its ETA-9141, it does not have to be included in its ETA-9142. And employer should always evaluate whether it makes sense to accept a higher wage rate or to allocate workers so that beneficiaries will never work in an area that boosts the wage rate for all work done by H-2B beneficiaries.

Closing Thoughts

While the Prevailing Wage Determination is a fairly straight-forward document and process, it can have severe ramifications if it is not given the proper consideration. Each year, there are first-time applicants who receive a Prevailing Wage Determination with a rate that is much higher than expected and results in them being unable to proceed with their H-2B application. If you are a new employer, or an employer who has received a rate in the past that was much higher than expected and you would like discuss the details and see if it might be possible to receive a lower rate this year, we would encourage you to reach out to us. Mention this Post to receive a Free 30 minute H-2B Visa consultation. We can be reached by email at info@trentwilliamslaw.com or you can reach us through the Contact page of this website or you can call us at (615) 422.7130!

If you find this Post useful or you have questions about the next step in the H-2B Visa application process, tune in next Monday!

-Trent Williams

H-2B Visa Employer Series: A Roadmap to April 2023

The H-2B Visa program is complex, messy, and imperfect to say the least. While each year brings its own difficulties, our goal is to provide the most up-to-date information so that employers, agents, and attorneys can made educated decisions and limit mistakes. Whether it is your first time navigating the H-2B program or something you rely upon each year, the H-2B Visa Employer Series is designed increase your odds of success in April 2023.

In the first post of the H-2B Employer Series, we will discuss some highlights of the program as well as tentative schedule to ensure nothing falls through the cracks resulting in an inability to move forward regardless of how strong your temporary need may be.

(And yes, we know that a lot of this information was provided in last year’s H-2B Visa Employer Series!)

Step 1. Prevailing Wage Determination

The H-2B Visa application process begins with a Prevailing Wage Determination. In order to obtain a Prevailing Wage Determination, an applicant must file a Form ETA-9141 in the FLAG portal. This document is fairly straight forward, an includes standard company information, geographic location(s) of work to be performed, and a detailed description of the work to be performed.

As a general rule, we recommend that Form ETA-9141 be filed Early November.

Step 2. Department of Labor Temporary Labor Certification

The second step in the H-2B Visa application process if filing an application for a Temporary Labor Certification from the Department of Labor. In order to obtain a Temporary Labor Certification, an applicant must file a Form ETA-9142. The 9142 must be filed during a 72-hour window that is announced each year, and is generally on or around January 1–4 each year.

The 9142 is generally considered the most important part of an H-2B Visa application, and we will be dedicating an entire post to the 9142 and accompanying documents we recommend be submitted with the 9142 including a Statement of Need, State Workforce Agency Job Order, Appendix B, and evidentiary support.

Once the 72-hour window closes, ALL applications received enter into a random group assignment process in which applications are assigned a classification beginning with Group A. This grouping process will be discussed further in a separate blog post as well.

Step 3. Notice of Acceptance or Deficiency

Following Department of Labor review of a 9142 filing, the department will issue either a Notice of Acceptance or a Notice of Deficiency. While applications often receive a Notice of Acceptance without any resistance, Notices of Deficiency are not uncommon, especially with first-time applicants. In the event that a Notice of Deficiency is issued, a strategic response is vital to the chances of success of an application, and we will discuss several tips for drafting a a strong response.

Step 4. Local Recruitment

Once a Notice of Acceptance is obtained, there are various local recruitment requirements that must be conducted by each applicant. Following local recruitment, applicants are also required to submit a detailed Recruitment Report that discloses all methods of recruitment as well as the results of such recruitment. These reports are vital to an application as well as vital record-keeping that must be maintained to avoid future consequences.

Step 5. USCIS Application Packet

Once all recruitment efforts are conducted and a Recruitment Report is filed and reviewed, an applicant receive a Temporary Labor Certification. Once this Certification is received, an applicant can proceed to USCIS and file an I-129 packet. Although the I-129 may seem like a straight-forward document, the items required for an I-129 packet to be accepted for processing can be surprising to some applicants, and portions of the I-129 itself can be misleading, especially for first-time applicants, and common pitfalls will be discussed in the H-2B Visa Employer Series.

Step 6. Recruit Foreign Workers

As soon as an I-129 is Approved by USCIS, employers may conduct foreign recruitment, schedule interviews, and officially begin the process to bring in its workers in a timely manner to maximize the benefits of its H-2B employer status. While this is an important step, H2B Lawyer does not formally assist with this portion of the program, but instead connects employers with recruiters who handle all matters.

All in all, the complex multi-step H-2B Visa application process can be quite difficult to successfully navigate. While many documents appear straight forward, there are countless items that, if addressed improperly, can result in a Notice of Deficiency, Request for Evidence, or even derail an application entirely.

If you are a first-time applicant or have fallen victim to some of the harsh realities of the program, we encourage you to tune in for this bi-weekly H-2B Visa Employer Series. Or, if you prefer, please reach out to us by email at Info@trentwilliamslaw.com or on twitter at @h2blawyer or by phone at (615) 422.7130.

-Trent Williams

Release the Visas - DHS and DOL to Release Additional 35,000 H2B Visas

On March 31, 2022, the United States Department of Homeland Security announced that an additional 35,000 H2B visas will be released for the April 1, 2022 H2B Cycle. While no formal rule has been published, some guidelines were disclosed and you can read the announcement here. This Post will also go over a few of these details as well as expectations of the Cap Relief visas based on previous relief granted by DHS.

What We Know

• The Visas are for Employers with start dates between April 1, 2022. and September 30, 2022;

• These Employers must hold a DOL Temporary Labor Certification;

• 23, 500 H2B Beneficiaries may come from any “Eligible Country” if the beneficiary has held H2B status during at least one of the previous three fiscal years;

• 11,500 H2B Beneficiaries may come from Haiti, Honduras, El Salvador, and/or Guatemala, and these beneficiaries are not required to have previously held H2B status.

What We Expect

• The 11,500 Cap Relief H2B Visas reserved for the aforementioned countries will be made available for beneficiaries (having recent H2B status) from any Eligible Country following a predetermined period if these visas are not fully allocated;

• There will be a requirement that additional local recruitment be conducted;

• There will be additional documentation that must be filed with an I-129 (check this out for reference);

• Audits. These won’t be the lengthy FLSA and H2B Audits, but they will be briefer audits that examine whether you can provide the proper documentation to demonstrate that the absence of H2B Beneficiaries will result in “irreparable harm” (so be careful if what you attest to in the additional documentation if you are required to submit it).

What We Don’t Know

• WE HAVE NO IDEA WHEN THE VISAS WILL BE RELEASED.

  This is not a joke. It is reality. A Temporary Final Rule will be published. However, it seems that nobody truly knows when this will be. And until this is published, no visas will be released. Following the announcement, the rumor was that the visas would be released the following week. The following week, the rumor was that the visas would be released by the end of the week, or possibly the next week. Neither happened. Now that we are in a new week, the Seasonal Employment Alliance has speculated that the visas will not be released until at least next week.

  Sadly this is an all too familiar feeling as it mirrors last year. For the April 1, 2021 Cycle, DHS and DOL announced that 22,000 Cap Relief Visas would be made available, and made this announcement on April 20. The Temporary Final Rule was not published until May 25, 2021.

  While rumor has it that the Cap Relief H2B Visas will be released earlier than last year, it would not be surprising at all if the visas are not released prior to May 1st. Again, this is purely speculation and I hope I am wrong. I hope the Cap Relief H2B Visas are released today, but at Williams Law, we try our best to give H2B Employers the most realistic picture of the H2B program and all its great features as well as its crippling flaws.

  For more commentary and more up-to-date information, you can follow on Twitter: @H2BLawyer

-Trent Williams

Acquisition Time - Selling Your Baby (Company)

You’ve done it! You had a dream, turned it into a reality, and somewhere along the way it became clear that others appreciated your product or service. While some companies keep the same ownership in perpetuity, and others may “go public”, many companies are acquired, and acquisition will be the focus of this Post.

Acquisitions happen at all stages of a company’s life cycle. Some companies are acquired simply because their idea is great; others because their idea has one component that is essential to another company’s needs; and others because it is clear to someone that the company will be quite profitable if acquired. These are just a few motivations for acquisition, and while the motive may vary greatly, the process tends to have many similar steps, and while this Post does not go into each and every item of an acquisition, hopefully it will give you a good starting point if you are ever approached about your “baby”.

Verbal Negotiaions

Most acquisitions start with some verbal negotiations. No surpise here.

Term Sheet

Following those verbal discussions, most acquisitions won’t jump straight to a contract phase. Instead you can expect a “Term Sheet” that reduces these big-picture items to writing. Term Sheets are generally fairly short and more easy to understand than a formal contract. Term Sheets generally provide big-picture items such as Parties, Purchase Price, Asset(s) to be acquired, Payment Schedule, etc. Much of the Term Sheet will be what you have verbally discussed most likely. Similar to verbal agreements, Term Sheets SOMETIMES enforceable. But many times parties to a Term Sheet will stipulate that the Term Sheet is “Non Binding” - meaning that the Term Sheet is meant to make sure the Parties are on the same page before time and resources are dedicated to the acquisition.

Contract - Asset Purchase Agreement

Once the Term Sheet is “finalized”, the Parties will likely have an Asset Purchase Agreement drafted. This is the starting point for the official contract. It will contain the information from the agreed upon Term Sheet, but will include so much more. If you have not used an attorney prior to this stage, it is prudent to utilize counsel to examine the Asset Purchase Agreement. Whereas a Term Sheet might be 2 – 5 pages, an Asset Purchase Agreement generally runs more like 10 – 50 pages (conservatively). And this document does tend to be fully binding, and contain damages provisions.

An Asset Purchase Agreement will have countless sections, but the focus of the remainder of this Post will be dedicated to the Representations and Warranty section. These sections will provide the information that you, as the Seller, are guaranteeing to the Buyer. For example, “There are no outstanding legal claims against the company…”, is a common clause in an Asset Purchase Agreement. So, if you do not know the answer or have something (like a lawsuit) that you cannot guarantee does not violate the terms of this section, what do you do?

Exhibit “X” - Disclosures to “Section Y: Representations and Warranties”

When a Seller cannot guarantee everything contained in the Representations and Warraties (of the Seller) section, the Seller will need to create a disclosure document, in which the Seller will disclose any piece of information that renders the Seller unable to “represent” or “warrant” to this section.

The Seller would go item by item and disclose EVERY item. For example, the Disclosure document might read, “Seller does not have or does not know to have any outstanding legal claims or threat of legal claim against the Company. Seller however does not own the trademark rights to its logo that has been in use for five years, which could result in adverse legal action.”

A disclosure of this nature could absolve the Seller of future liability in the event that the Buyer or New Owner of the Company faces legal action brought by the owner of a similar trademark that alleges infringement of its rights.

While the Disclosure Document feels like an admission of guilt at times, you should always work with a professional to determine what information is required for disclosure. Trust me, it is better to disclose this information before an acquisition than to hide it from the Buyer and risk voiding the contract or incurring significant liability/damages in the future.

Miscllaneous Items

Another highly important thing to watch out for in your Asset Purchase Agreement are the unique things you may have negotiated. For example, are you going to retain an interest in the company soon to be owned by the Buyer? Or will you be a service provider following the Acquisition? While these may seem like items that won’t apply directly to the Asset Purchase Agreement, these items are generally attached to the Agreeement and should be acknowledged as such. For example, if you are to be an Advisor for 6 months following the acquisition, and you are to be compensated for this role, and this is something important to Seller and Buyer, then you will likely want to include a Service Provider Agreement as an exhibit to the Asset Purchase Agreement.

Do not make the assumption that because the Asset Purchase agreement is signed and everything went smoothly that everything will go smoothly for the duration of your relationship with the Buyer. If there is something that is agreed upon, make sure that it is discussed and accounted for in the Asset Purchase Agreement, its Exhibits, and/or there are executed documents that properly reflect the situation.

Closing Thoughts

Thank you for tuning in. This Startup Series barely scratches the surface of each item discussed, but the hope is that you gained something from each Post. As always, if you have any questions or want to dive deeper into any topic discussed, please don’t hesitate to contact Williams Law. Email Info@Trentwilliamslaw.com or give us a call at (615) 422-7031. Cheers!

-Trent Williams

Raising Capital - Give Me Money…I Think.

While many entrepreneurs and startups are able to operate cash-flow positive companies that do not need any form of outside investment, that is not always the case. So while we understand that debt is commonly a starting point for many businesses, this Post will speak more to the entrepreneurs and startups that seek to raise capital through equity rather than debt. There are many methods to raising capital through equity, and this Post could be far more detailed regarding those instruments, the goal of this Post is to discuss the various stages of fundraising, and what each stage looks like rather than the specific equity tools that could be used. For a more detailed discussion, please reach out by email and we will be happy to discuss your options!

Pre-Seed Round

Pre-Seed fundraising often occurs prior to any institutional or “venture” investors. This “round” can obviously look drastically different depending on your company, product, or service. For this Post, we will discuss two investment types:

1. Founder Funding

   In our last post, we discussed Founder Shares. However, a Founder might want to increase their equity in the company through a later investment as well. This is a great option in the scenario that a founder has extra capital to contribute, but prefers that the equity be in a different form than already held Founder Shares.

2. Friends and Family

   A Friends and Family raise is quite common. While some of you may be thinking to yourself that you don’t have friends or family who like you this much, let’s think of this round as being quite vague. Simply put, this is a type of raise that doesn’t always include accredited investors. Each investor may contribute a relatively small amount in exchange for equity.

Seed Round

A Seed Round is often-times the first investment from sophisticated or accredited investors. While it doesn’t generally include venture capital funds, or at least not large funds, most investors in a Seed Round are not first time investors, and are contributing at least $25,000 in exchange for their equity stake.

1. Friends, Family, and Founders

   All of the above may be involved in a Seed Round. If their previous investment seems to be doing well and capital is available, it is quite common for early investors to tag along for the next round as well.

2. Angel Investors

   While you may have had “Angels” in your Pre-Seed Round, it’s very likely you will have Angels in your Seed Round. An Angel is an individual who generally contributes at least $25,000 to an investment. While there are Angel Funds that you may be familiar with, for now we will assume that an Angel is one (1) person.

3. Crowd Funding

   Crowd Funding has become far more prevalent in recent years. It is a great way to allow many small investors to contribute to a project but to do so as part of a larger “fund”. There are websites and apps that facilitate this action. Give the nascent nature of this method of fundraising, be sure to do your homework and work with an attorney who is familiar with the changing laws that accompany.

4. Venture Capital

   While a Seed Round does not tend to have involvement from major venture capital firms/funds, it is entirely possible that individual venture capitalists or “micro” venture capital firms/funds would get involved. Micro funds are becoming more and more common, and tend to be very regional, so depending on your location, there might be a great possibility for your company.

Series A

Up until now, you’ve been dealing mostly with friends, family, and individual investors, or at least smaller firms. But now that you’ve taken their money and built out a great working model, put a rockstar team in place, and often times simply need capital to scale, you’re going to need to get some institutional investment to reach your potential. Investors in a Series A will sometimes overlap with your current investors, but this is the stage that traditional venture capital funds tend to get involved.

1. Friends, Family, Founders

   Similar to your Seed Round, some of these investors may tag along depending on their financial position.

2. Angel Investors

   These are likely Angels who put forth or were capable of putting forth far greater than the previously mentioned $25,000 investment. Think very high net worth individuals most likely.

3. Crowdfunding

   This is doubtful, but with crowdfunding developments, anything is possible. However, it is more likely that traditional institutional investors will not want this component to a Series A Round.

4. Venture Capital

   This is the Round where venture capital firms tend to start buying up a lot of equity. Maybe some smaller funds that bought into your company early will tag along if they can, but many times, larger venture capital firms will seek to own a large stake in your company, which may make it impractical for earlier investors to participate in this round.

Series B – ?

We won’t spend a lot of time discussing Series B and beyond. Once a company reaches Series B, investors will likely be larger and larger venture capital firms. There are some firms that are thought of as “late stage venture capital” and B is likely where these investors would begin to enter. At this point, the company is continuing to scale, hiring experienced executives, and either trying to grow its market share by user or consumer growth or by acquiring competitors or complimentary companies. These goals often continue into later rounds if there are any, and can sometimes accommodate for expenses related to an IPO or similar placement.

While we could spend an entire post discussing some of these later rounds, strategic acquisitions, accelerator programs, and other items, we hope that this Post has been high-level informational, and that you have a better idea what various investment rounds look like from a company perspective. It is good to remember that each company and entrepreneur is different, and to remember that each round can look drastically different in reality than what you expect when you begin seeking capital. But if you have any questions along the way, Williams Law is here for you!

Tune in next time for our final installment of this Startup Series, where we will discuss acquisitions - because maybe another company just received Series C fundraising and hopes to purchase your baby to increase their market share!

-Trent Williams

NDAs, MSAs, SOWs, ETC - Legal Documents that Every Startup Needs

Today’s post will briefly discuss a laundry list of legal documents that every founder and young startup company needs to consider as they build and grow so that the actions aren’t costly mistakes that result in messy situations in the future. These documents are not exhaustive and do not address every company’s needs, but these are meant to be a true starting point for any company to reduce your risk of serious complications. As always, if you need one of these documents or you have questions about additional documents, email us and we will be happy to discuss your concerns and needs and set you up to continue growing your business.

NDA - Non-Disclosure Agreements

EVERY company should consider having at least one NDA prepared and ready to provide to clients, potential clients, employees, potential partners, etc. To sum it up, an NDA requires the other party to “not disclose” confidential information that you may provide to them in the course of business or in contemplation of business. There are various types of NDAs, so for this post, we will keep the discussion limited to “One-Way NDA, Mutual NDA, and Employment NDA”.

One-Way NDA

A One-Way NDA is meant to protect one party of a situation. This might be common if a company is disclosing confidential company information to a prospective client or partner, and there is little expectation that the other party will be disclosing information in return. A One-Way NDA should be drafted so as to protect the company who is publishing its information with hopes of a benefit, so that the company can be truthful and forthright without the concern that other party will take the confidential information and put it to use without the company’s consent.

The most likely example of when a One-Way NDA would be beneficial is in the company-client relationship. If the company is hoping to secure a client, the company may need to discuss various confidential items to encourage the client that a relationship would be beneficial. However, the client may not need to disclose any information, so one-way protections would be sufficient.

To the inverse, if you are ever presented with an NDA, take a quick look and make sure that it’s not a One-Way NDA if you intend to disclose information.

Mutual NDA

A more common NDA is the Mutual NDA. A Mutual NDA protects confidential information provided by BOTH sides of a discussion. Generally, each side to an arrangement or potential relationship, will disclose confidential information. For instance, if your company is searching for a distributor of your product or a company to build part of your app, or something of this nature, the company will need to describe its situation and needs and the company may require that the other party disclose confidential information to demonstrate that a relationship would be mutually beneficial.

A Mutual NDA is not only the most common due to practicality, but also the most common with young companies because it reduces the legal documents that must be created. A company will inevitably need a Mutual NDA at some point. A company is less likely to need a One-Way NDA, and if a One-Way NDA would suffice, then a Mutual NDA will also suffice. It will simply reduce your ability to utilize confidential information disclosed by the unprotected party.

So if you’re a new company looking to minimize legal costs, start with a Mutual NDA, then consider a One-Way NDA as your legal needs develop and your legal budget increases.

Employment NDA

In addition to having a Mutual NDA, every company should have an NDA that it provides to its employees and independent contractors. A good One-Way NDA or Mutual NDA may work for this purpose, but it something that you may need to communicate to your attorney. This is also the reason why an NDA template may not meet your needs and may create the need for various documents. If you communicate your NDA needs to an attorney, you can likely incorporate the proper terms and provisions into a One-Way NDA or a Mutual NDA, but may templates will not cover your differing NDA needs.

MSA - Master Service Agreement

A Master Service Agreement is generally your go-to, several-page, fully-binding “Contract”. An MSA contains all the key pieces to your agreement. From defining the parties to an agreement, the terms, the services, and the fees to matters such as choice of law, alternate dispute resolution, and indemnity provisions.

Many times, a company can utilize a good MSA as a template for all agreements that are similar. A great MSA may require only that the names of the parties and information related thereto is updated for each client. So if there is one document that you want to make sure your company has drafted by a legal professional, this would be the document.

SOW - Statement of Work

As mentioned above, a great MSA may require very little modification. So if you’re not changing the MSA for each client, how do you address the differences of each agreement. The answer is a working Statement of Work (SOW), “Schedule”, or something similar.

An SOW is often times a short document that is referenced in an MSA, and the SOW is generally an exhibit to the MSA. If you want your MSA to change very little, you will be relying on the SOW to document the differences. For instance, the MSA might state that the “term” or the “fees” are subject to the SOW. Then each SOW drafted will have a different input.

This allows small changes to be made from one client to another, and for modifications to be made as needed without attempting to overhaul an MSA that is generally much longer and complex than a statement of work.

To simplify, a Statement of Work is similar to a movie trailer and the MSA is the movie itself. A trailer or SOW provides the other party with an idea of what to expect and may even provide a fair amount of information. However, the MSA must still be reviewed, similar to a movie being watched, before all the details can be known.

The ETC.

The documents discussed above are just a few of the most important documents for an entrepreneur or young company to consider. Others generally include employment and/or independent contractor agreements, privacy policies and terms of agreement/use (every website, software and app needs these), and licensing agreements.

The goal of this post is to help you think about some of the biggest items needed to operate an early-stage company. If you need assistance with any documents or think that some may not be right for you but just want to make sure, please reach out. A 20 minute phone call could make all the difference for you company.

If you find this series beneficial, be sure to tune in next time for a discussion on Raising Capital!

-Trent Williams

Equity Incentives: A Guide for Early Team Members

So you’ve set up your entity to make your dreams come true! Congratulations! But now you may need to figure out how to distribute ownership between you and your other team members as well as attract top talent to help build your dream company.

This post is focused more on the stereotypical “Startup” company. The company that starts with an idea (let’s say tech). The company that starts with just you and two team members. You know that you and your team need to have an ownership stake in the company, and you also know that to bring in talented employees, you need to give them some ownership as well, because your dream hasn’t generated enough revenue for competitive salaries and you haven’t raised capital yet. You also hope that your early hires will want a stake of your company’s success. Rather than focusing solely on the short-term benefits of a higher salary, you hope that these early hires will have an interest in the long-term success of the company as well and will embrace the fact that the company’s success results in a far greater pay day for them in the future.

So what does this look like? While there are several options for the exact structure of equity incentives, this post will discuss a simple equity grant and a few of the features that are common to grants to Founders and early team members. This post won’t tell you everything you need to know to draw up the documents and present them to a potential hire, but is meant to help you consider your options and present ideas with a little more detail.

So what do you do? This post is going to go through a common method of compensation for you and your friends as well as new team members. As always, there are many more options and details than we could put into a blog post, so if you’re interested in learning more, shoot over an email at Info@Trentwilliamslaw.com.

Founder Shares

For you and your friends, you will probably want to keep things fairly simple. An easy option for this is a simple Equity Grant or Stock Award or Founder Shares. These are all phrases that are used that essentially mean that shares of stock are given to an individual (and these will be Restricted Common Stock). And each grant/award/etc. will contain many terms/phrases/provisions that this post will unpack a bit.

Vesting

These shares often times have a “Vesting Period” - meaning that the individual does not actually own the shares until a point in the future. A common vesting schedule might be “4 years with a 2 year 50% cliff then monthly vesting”. But what does that mean? To break it down, this means that the owner of the equity will not actually own any interest in the company until 2 years from the grant. At that time, they will own 50% of the total shares granted to them. Then the remaining 50% would become their property proportionally over the course of the next two years.

A structure like this incentivizes founders or early employees to work for the company for at least two years, but also incentivizes continued work following the two-year cliff. In order to recognize the full benefit of their equity grant, an individual would need to work for the company for at least 4 years.

Now that we’ve covered the big picture, we’ll dive into a few other common terms and provisions and try to provide a little more clarity.

Par Value

So what do you have to pay for this ownership interest? You can’t just give away part of a company without getting something in return, right? How would we ever calculate taxes? In order to address this, companies will have a “Par Value” for their shares - this is the lowest price that a company can legally offer its shares to an individual. Common Par Value may be something like $.00001 for a brand new company. So you could own 1 million shares for as little as $10.00 (if this is a purchase agreement), or could have a very low tax burden for the shares that are issued in exchange for services (File an 83B and thank us later!). For companies that haven’t raised capital or really launched a high revenue-generating product or service, this is quite common. So as you are starting your company and choosing the best Par Value, don’t be afraid to choose something like $.00001. This doesn’t mean that your company is “worthless” and it won’t scare away anyone.

So let’s say this is an actual “grant” and not an option (a topic for another day). If an early team member is granted 1,000,000 shares of common stock with a $.00001 par value, then those shares are “valued” as $10.00 of income. With the proper elections/filings, this “income” would be taxed at the appropriate level. Then when your company sells for $10 billion, and your 1 million shares are worth far more than $10, you’re going to be a lot happier!

Transfers

Often times, these shares will prohibit transfers. This is done as insurance against a disgruntled member transferring or selling their shares to the highest bidder (maybe a competitor). So even after those shares have vested, it’s a smart idea to have those shares “restricted” as far as transfers. Many shares will only be transferrable with the approval of the Board or approval of the shareholders.

Buy Backs

A tag along to the transfer restrictions mentioned above is a standard buy-back provision. This would commonly provide the company with the right to buy back the shares from the holder at a designated price. Again, these provisions are all set up to protect the company, and if you’re the Founder, you’re going to want to make sure you have these built into your grants (even your own).

Acceleration

The last term we’ll discuss is acceleration. We’ve discussed how shares don’t actually become the team members property until they have vested. But what happens if the company is acquired prior to the vesting period ends? Or what if it’s acquired quickly before the two-year cliff has even occurred? This is where acceleration comes in, and there are two primary types.

1. Single Trigger Acceleration - this occurs upon a singular event. Maybe it is the sell of the company (most common). In the event that the ownership/control of the company changes hands, this might result in a full vesting of the shares. Meaning that once the company sells and generally upon a “change of control” the shares become 100% vested and become property of the holder.

2. Double Trigger Acceleration - this is the more common method, and it not only would require a change in ownership of change of control, but would also require that the individual be terminated or have his/her role or responsibilities or compensation negatively impacted as well (for example). Meaning that if the new owners retained the individual following the purchase, and continued to compensate the individual similarly, then the shares would not accelerate and would follow the original vesting schedule without agreed upon changes to the schedule.

Hopefully this post has shed a little bit of light for some of you. It’s not overly detailed and there are many options for compensation that are not discussed. The point of this is to let each of you know that you can (and should) give away part of your dream to others who can help you build and develop something great. You won’t be giving them a percentage of your dream on day 1 and losing it on day 2. There are always provisions that protect you against this scenario. So if you’re short on cash or a potential hire wants some stake in the game also, don’t think that they’re taking advantage of you when they ask for some equity. There are a lot of upsides to issuing equity to those early team members and co-founders, and Williams Law can be there to make sure that its done correctly so that you avoid those costly mistakes down the road.

If you’re enjoyed this post and you’d like to learn more, check out the Williams Law Startup Series that began with Entity Selection, or tune in for our next post where we’ll be discussing some of those documents that all companies need such as NDAs, MSAs, SOWs, ETC.

Cheers!

-Trent Williams

Entity Selection: Make Your Dreams Come True

Do you want to quit your job? Start a business? Follow your dreams? Start a side hustle for some extra cash? Or just get some tax breaks for your hobby?

If any of these sound like you, then this post is for you! In this post, we are going to discuss a few of the questions an individual should consider before embarking on their entrepreneurial journey. While you can start a business by selecting any entity, not every entity is right for you, and choosing the right entity at the outset can help you avoid costly mistakes or corrections down the road. This post will briefly discuss Sole Proprietorships, Partnerships, Limited Liability Companies, and Corporations.

Sole Proprietorships

A Sole Proprietorship is the simplest entity. If you want to have a “business” without jumping through legal hoops, the Sole Proprietorship is quick, easy, and might be right for you. Sole Proprietorships are simple to start, generally requiring minimal paperwork filings. With proper documentation, a Sole Proprietorship can have tax benefits similar to other business entities in the sense that costs/expenses can be utilized to offset revenue of the Sole Proprietorship - but please document your transactions well, get a separate tax ID, set up a separate bank account, etc., and discuss matters with a tax specialist!

Unfortunately, a Sole Proprietorship does not carry limited liability protections that other entities carry. Meaning that if your Sole Proprietorship becomes subject to liability, the debts and obligations of the business may be passed along to you and your assets in your personal capacity - which is a primary concern for most business owners!

Partnerships

There are two primary types of Partnerships; General Partnerships and Limited Partnerships. This section will discuss each briefly, but for more information, please reach out to us!

General Partnership

Similar to a Sole Proprietorship, a General Partnership is incredibly simple to start. It is simply the association between two or more persons for a common business venture. A written agreement to form a General Partnership is recommended (strongly) but not required. Also, similar to a Sole Proprietorship, the Partners are taxed via pass through method. Meaning that the Partnership itself is not taxed in addition to the Partners. The tax burden is “passed through” to the individuals depending on their “ownership” or “economic interest” in the Partnership.

Also similar to a Sole Proprietorship, the General Partnership does provide limited liability for the Partners. Meaning that each Partner my be fully personally liable for the debts, obligations, i.e. liabilities of the Partnership. This tends to make General Partnerships unappealing to potential Partners as well as investors and/or potential buyers of a company.

Limited Partnership

In contrast, a Limited Partnership requires a few extra steps for founders/partners. A Limited Partnership is a Partnership in which duties and obligations of the company are divided between “General Partners” and “Limited Partners”. States tend to have different rules and regulations of Limited Partnerships, so please do your homework and talk to a professional in your state.

While a Limited Partnership differs considerably from a General Partnership (mostly in liability), the tax treatment of Limited Partnerships looks similar to that of a Sole Proprietorship or General Partnership in the sense that tax burdens are allocated proportionally to Partners (passed through), but the Partnership is not taxed as a separate entity.

The primary difference between a General Partnership and Limited Partnership is the “limited” liability that accompanies a Limited Partnership. While Limited Partnerships generally require additional paperwork to realize the limited liability, Partnerships that do jump through the requisite hoops are able to shield “limited” Partners from some liabilities of the Partnership that were not a result of the Limited Partners actions. Again, each state has different rules, regulations, and laws, so please consult an attorney in your state for a full discussion of the liabilities that may be escaped in a Limited Partnership.

Limited Liability Company

Limited Liability Companies or LLCs are probably the most popular entity for entrepreneurs as they begin to chase their dream. Like you might have guessed, an LLC limits your liability and the liability of other potential Members! And while LLCs can be a great option for some, they may not be perfect for all. While this post will discuss a characteristics of LLCs, again, you should consult with a professional rather than relying on this post for all your LLC legal information.

Unlike a Sole Proprietorship or General Partnership, an LLC does have filing requirements generally with your Secretary of State. Additionally, these filings aren’t exactly cheap. Some states, like Tennessee, can cost a few hundred dollars (plus expedited charges). In addition to what is filed, every LLC should also have an Operating Agreement. This document provides some details about the entity. If it is multimember, this is where membership interests, economic interests, along with countless corporate formalities will be laid out. While you can get a copy from most E-Legal service companies, I would strongly encourage you to work with an attorney (especially if you are a multi-member LLC). On that note, Members of an LLC may be individuals and/or companies, and the number of Members is entirely decided by you (a Member).

A great thing to remember about LLCs is that they provide a lot of flexibility. Members may have Membership Interests, Voting Rights, or Economic Interests, and these varying rights and interests can also be divided up in almost any creative way that you can imagine. It would not be uncommon for you to own a 50/50 Membership interest with your fellow Member, but for one of you to hold a 60% Economic Interest (meaning you get more money from the business than the other Member). Additionally, it has become more and more common for LLCs to use a “Profit-Share” method to incentivize persons within the company or to attract talent. The realistic truth is that LLCs can be wildly creative, which has garnered them the reputation as the “Wild West” of entity selection.

However, a downside (traditionally) to LLCs is that they can be messy and equity grants, advisor shares, stock options, etc., are a little less straight forward than they might be with a standard Corporation. This not only can create more in legal fees, but traditionally has resulted in reduced excitement from investors. However, the growing popularity of LLCs and the increase in investment capital is trending away from this traditional norm. And remember, you can always convert an LLC to a Corporation down the road if an LLC makes more sense for the short term, but a Corporation makes more sense in the future.

Corporations

For now, we will focus on the standard C-Corporation. While S-Corporations have a place in this discussion (and so do non-profits and B-Corps), we’re going to focus on the classic C-Corporation. It sounds intimidating to many, but could be your best option depending on you and your company’s vision. Corporations carry the benefit of limited liability but also the burden of corporate formality hoops (similar to an LLC).

Unlike many of the entities discussed in this post, a C-Corp does not have pass through taxation principles. The Corporation and its owners are entirely separate as far as the tax code is concerned. While the money paid out to owners may be registered as an expense or something of that nature that may generate tax benefits, the Corporation and the individual/owner each have a tax burden. But, this is not necessarily a bad thing (Corporate taxes may be better than individual taxes) - Again, it is of the utmost importance that you consult with a professional (Attorney or CPA or Tax Specialist) about your particular case.

Similar to an LLC, Corporations can get creative with “ownership” structures. Many Corporations have multiple classes of stock and multiple series within those classes. For example, if you were to hire a new employee to your Corporation, you might want to offer them an “equity incentive” that might look something like…Class B Common Stock…and that stock might have a 4-year vesting schedule with a 50% cliff at 2 years subject to double-trigger acceleration. Or, you might offer an investor Preferred Shares in exchange for $500,000.

And, as noted above, an investor might be more likely to invest in a Corporation than an LLC because those Preferred Shares look like what they are used to seeing, which is why investors have traditionally preferred Corporations to LLCs.

The Wrap Up

I hope this Post has been educational. While most of it merely scratches the surface of entity pros and cons, my hope is that it sheds light on the fact that you do have choices. Not every business venture has to be a “Delaware C-Corp” and not every hobby should be a Sole Proprietorship. And lastly, your entity selection today is not set in stone. If you chose to be an LLC but now you’re thinking that you want greater simplicity in issuing equity grants without reducing your likelihood of future venture capital investments, you can make changes to your corporate structure. A good attorney will be able to walk you through the required steps while discussing the pros and cons of these strategic decisions to help you avoid costly mistakes.

If this Post has helped you and you’d like to learn more, Williams Law is here for you, so don’t hesitate to reach out at Info@trentwilliamslaw.com. And tune in for the next post in the Williams Law Startup Series for further discussion of those Equity Incentives I mentioned earlier.

Cheers!

-Trent Williams

Williams Law Startup Series

At Williams Law, we take pride in helping entrepreneurs build their dream companies. From the early discussions about which entity is right for you, to conversations about late round financing or acquisition options and everything in between, Williams Law is there for our clients.

Beginning on January 11, Williams Law is kicking off its Startup Series. A five-part series that will walk through the following topics:

1. Entity Selection - Make Your Dreams Come True

2. Equity Incentives - A Guide for Early Team Members

3. NDAs, MSAs, SOWs, ETC - A Laundry List of Legal Documents Every Startup Needs

4. Raising Capital - Give Me Money…I think.

5. Acquisition Time - Selling Your Baby (Company)

If you are an entrepreneur, Startup Company, or just have a dream you’re considering turning into something more, this Series is for you. It will touch on high-level terms and concepts as well as dig deeper into certain items that could help your company make educated decisions and avoid costly mistakes.

So if you’re 2022 New Year’s Resolution is to form, build, grow, or sell the company of your dreams, tune in weekly to the Williams Law Startup Series.

Cheers!

-Trent Williams

H-2B Visa Webinar 2021

On December 7, 2021, the Department of Labor hosted a webinar to discuss various matters related to the April 1, 2022, H-2B Visa cycle. Much of this webinar discussed general rules/regulations of the H-2B Visa program and much of this information can be found on our Resources Page, so we will try to avoid repeating it in this Summary.

The webinar began with a broad strokes summary of the program “obtain DOL Certification, file with USCIS, receive USCIS Approval, Beneficiaries interview, Beneficiaries enter the country, etc.” and “Needs must be temporary and ‘seasonal, peak load, etc.’” - ALL OF THIS INFORMATION CAN BE FOUND ON OUR RESOURCES PAGE IN THE H-2B VISA EMPLOYER SERIES!

The webinar then went into the specifics of the April 1, 2022 cycle.

The Filing Dates for April 1, 2022 will be: January 1, January 2, and January 3. Applications filed on ANY of these three days will be subject to the random group assignment that will take place on January 4, 2022.

Following group assignments, notifications will be sent to employers/representatives and a list will be published for public review within 5 days of assignment. Group assignments and distributions will be similar to the past two years. Group A is the most desirable group as these applications will be reviewed first and then Group B and so on.

The webinar mentioned a new messaging feature on FLAG. Having represented clients in October 1, 2021, I am familiar with this feature, and I will say that it is pretty intuitive. I would recommend logging into FLAG and looking around, but until messages come in you won’t notice any changes.

The webinar then discusses some “tips” for filing your 9142B. If you follow our Resources Page, the Youtube series that Williams Law did with Fronteratech or signed up for with Williams Law x Frontera Tech Ebook (request one on our website), then you will already be familiar with a lot of these “tips” so don’t worry!

One item worth noting was a discussion on multiple filings by the same employer. This conversation got in the weeds a bit and there was some commentary that the facts given during the webinar have been proven wrong or improper in light of a recent BALCA decision (specifically the portion regarding a “single employer test”. However, if you represent a company or are an employer filing multiple applications whether it be based on differing geographic locations, different positions, or different dates of need, this may be worth reviewing. “Only one Application for Temporary Employment Certification may be filed for worksite(s) within one area of intended employment for each job opportunity with an employer for each period of employment. 20 CFR 655.15(f).”

If you are an employer or represent an employer who might run into this issue, I would recommend proceeding with caution. Speak with a more seasoned attorney or an attorney in general who may help you navigate this matter. And, if you receive an NOD based on this issue, DON’T PANIC! NODs are not the end of the world. Stay calm. Respond quickly and accordingly. Keep moving forward.

If you are an employer who is switching from the October cycle to the April cycle (yes there are a few!), then you will be expected to clearly distinguish your upcoming need from your historical needs. This is something that sends up a red flag, and if there is an understandable shift in your business or an intuitive shift, an NOD may be issued requiring further explanation.

While the rest of the webinar provided valuable information, it was all commentary on rules and regulations. It discussed some how-tos as far as filling out Job Orders, compliance with advertising requirements, and how to file an extension for your workers if something arises that creates an extended need.

While the webinar would be a great starting point for a new H-2B Employer or new H-2B attorney, the content is quite redundant with the resources made available by Williams Law, so we will not spend too much time speaking to the exact rules/regulations in this post. However, if this post or the webinar leads to any questions about the program in general or about your particular case, we would be happy to discuss these items with you prior to your January filing. And if you’re wondering about consultation rates, you can check out our most recent post that discusses our plans for the rest of 2021 and 2022!

-Trent Williams

H-2B Visa Employer Series: Life after Approval

Welcome back for the sixth and final Post in the H-2B Visa Employer Series. If you have followed along this whole time, I thank you, and I hope that the information contained in these Posts has been informational and beneficial. Today we are going to discuss what comes after you send the I-129 packet to USCIS for H-2B Approval.

While there is always the possibility of a Request for Evidence or an issue with your documents that requires attention before Approval, today we are going to assume that you have just received your Notice of Approval and discuss what should be done moving forward. Below is a 10 point list of items to be aware of, and while the list is not exhaustive, it will provide you with a good starting point to build upon.

1. Make Copies of your Approval. This seems easy to do, but trust me, the last thing you want to do is misplace your documentation. Not only are there requirements that you maintain paperwork records for years following participation in the program, but you will also want to supply this Notice of Approval to your Recruiter so they can facilitate the recruitment of workers in your requested country.

2. Provide Recruiter with Translated Job Order. Remember that Job Order that we keep mentioning. This must now be translated to the native language of the country you intend to recruit from, and provided to each Beneficiary for their review prior to employment.

3. Provide Recruiter with Beneficiary Information. As well as providing your recruiter with your Approval and translated Job Order, you will need to provide your Recruiter with information of any/all Beneficiaries you have already identified that you would like to apply for H-2B Visa Beneficiaries. Agencies differ, but I always recommend that the Employer try to gather Name, Address, Phone Number, Email Address, and copies of a Driver’s License, Passport, and Birth Certificate, so that the Employer can provide these to the Recruiter early in the process to expedite matters.

4. Pay Visa Costs. Discuss with your Recruiter the best method for this one. Some Recruiters will cover Visa application costs and then bill the Employer. Some will require the Beneficiary to pay the application costs if the Employer has not already paid these. And other Recruiters will require that the Employer prepay all expected costs, which the Recruiter holds in an escrow account until the funds are used to pay Visa costs.

5. Provide Travel or Cover Travel Costs. Employers hold a responsibility for getting their workers to the Worksite. Some Employers find it beneficial to pick up Beneficiaries and transport the Beneficiaries themselves. Other Employers purchase bus or plane tickets for the Beneficiaries. And some Employers leave it to the Beneficiaries to travel to the Worksite and then reimburse accordingly. And don’t forget the Daily Subsistence and the rate advertised in the Job Order!

6. Follow Through. Whatever wage rate was advertised, PAY IT. Whatever job duties were described, STICK TO THEM. Whatever schedule was advertised, STICK TO IT. If you promised to provide housing, and to deduct accordingly, then DO IT. In addition to following through with everything advertised in the Job Order, Employers should review and make available this Poster so that Beneficiaries know their rights. And if you have any questions, you can always refer to this section of the Code for guidance.

7. Get Beneficiaries Social Security Cards. Most Employers try to help their Beneficiaries get temporary or limited Social Security Cards within two weeks of their arrival for payroll purposes.

8. Report Workers who Abandon. Employers should review these regulations (look at Section Y) to know when to report a Beneficiary to the proper authorities. Remember, Beneficiaries are only authorized to work for your company. If they leave your company to work for another company, they are in violation of their work authorization. This, along with other scenarios can trigger an Employer’s responsibility to report this misconduct.

9. Notify the Authorities of any Termination. Employers are within their rights to terminate a worker for cause. If a Beneficiary simply is not working out, an Employer may terminate that employment. Upon termination, the Employer has responsibilities that are discussed here.

10. Encourage Workers to Leave On Time. Beneficiaries have up to 10 days following the end of their work period to wrap up any lingering matters and depart the country. Some Employers will provide transportation to Beneficiaries during this 10 day period while others will cover travel costs. While it can be difficult for an Employer to guarantee Beneficiaries do in fact leave the country, Employers should always encourage departure and discuss the consequences of overstays.

Whether you are an Employer or Attorney or Agent, this 10 item checklist can be a great resource for first-time H-2B Visa recipients or someone hoping to review a few items. While this only scratches the surface of an Employer’s responsibilities, some of the items I have linked to are essential for any H-2B Employer, and can always be relied upon to provide information about Employer responsibilities and/or Beneficiary rights.

I hope that you have enjoyed the H-2B Visa Employer Series and that you have found it informational. If you still have questions about the H-2B Visa program or you now realize that the program is far too time consuming for an Employer to tackle alone, please do not hesitate to reach out at info@trentwilliamslaw.com and schedule a consultation. I will be happy to discuss the program and whether it might be right for your company. And, for a limited time, I will be discounting my Consultation Rate for anyone who mentions this H-2B Visa Employer Series.

One Final Note

The April 1, 2022 Cycle is months away. But, don’t wait to reach out and begin the application process. Each year I turn away clients because they waited too late to discuss their options. Nothing will reduce your chances of utilizing the H-2B Visa program for supplemental labor as much as failing to act early.

-Trent Williams

H-2B Visa Employer Series: I-129, I-907, 9142B…How Many Pages?!?

You did it! You filed your 9141 and received your Prevailing Wage Determination, submitted your 9142B with a persuasive Statement of Temporary Need, recruited U.S. workers across various methods and contacted former employees to demonstrate that you are unable to find local workers, and you have now received your H-2B Visa Full Certification! Unfortunately, Employers can not stop there. Following the H-2B Visa Full Certification, Employers must proceed to USCIS and submit an even more elaborate H-2B Visa application packet. And, unlike the 9142B, the packet for USCIS must be sent in paper form, oh, and in duplicate! If this Post comes across with tones of frustration, I apologize in advance, but once an Employer goes through this portion of the H-2b Visa application process, I have full confidence that it will be a mutual feeling! This Post will be broken into two sections; The Where and The What. So please, sit back, relax, and enjoy the redundancy of this process.

The Where

“The Where” is dependent on the following:

• Where is your business located?

• Are you using premium processing? (YES YOU ARE!)

• What shipping service are you using?

Depending on where your business is located, your packet will either be sent to an East Coast or a West Coast processing center. Please review this LINK thoroughly as it contains all of the information you will need.

If you are using premium processing, which means filing an I-907 with your packet and paying an additional $1500.00 to hopefully receive USCIS Approval within 15 days of filing, then your H-2B visa application must be sent to the Premium Processing Service Center for the proper Coast. Again, this LINK is your best friend. Take your time and make sure you understand it well.

In the rare case that you choose to not use premium processing, where you file is dependent also on which shipping service you choose. USPS may have a different processing center or shipping address than UPS, FedEx, or DHL, but again, this can also be dependent on which Coast is proper for your filing. Again, this LINK is essential. I cannot emphasize enough that every employer or attorney should review this LINK prior to shipping an H-2B visa application packet to USCIS.

The What

Now that you know where you plan to send the H-2B visa packet, let’s talk about what is going to be included in this packet. You may be thinking, “It’s probably just the I-129 and I-907…I have already submitted a 9141, 9142B, Statement of Temporary Need, Job Order, etc.” And you would be wrong. To summarize, EVERYTHING that you submitted via FLAG must now be submitted in paper format to the proper address. Below is a list that is generally sufficient, but every case varies, so please do not take this list as exhaustive for your filings.

1. CHECKS - The current fees for an H-2B visa application with premium processing is $2110.00. This includes a $460.00 I-129 fee, a $150.00 fraud prevention fee, and a $1500.00 I-907 premium processing fee.

2. Form I-907 Request for Premium Processing Service - As noted above, 99% of the time is it best to request premium processing. This pushes an H-2B application to the front of the line and increases the odds that the application will be reviewed in a timely manner prior to the H-2B cap being met.

3. Form I-129 Petition for a Nonimmigrant Worker - This is a lengthy document, but only a small portion applies to H-2B applicants. It is crucial that an applicant read this document carefully and review the Instructions for the I-129 as well to reduce the chances of an error that would result in delayed processing.

   Everything mentioned below should have been submitted via FLAG as part of the 9142B application process.

4. Temporary Labor Certification and Certified 9142B - Include the e-mailed Certification notification as well as a copy of your 9142B that states on the bottom of each page that the 9142B received “Full Certification”.

5. Signed Appendix B (from 9142B)

6. Statement of Temporary Need - If you attached a Statement of Temporary Need or evidence to support your application via FLAG, this must be included in this packet as well. If you were able to fully argue your temporary need in the small text box on FLAG and did not attach documents, then please ignore this point.

7. State Workforce Agency Job Order

8. Recruitment Report

9. Recruiter Documents - This is any contract signed with a foreign recruiter and/or the recruiter/agency’s information.

10. Form G-28 - If the application packet is filed by an attorney, a G-28 must be included with the packet.

One last thing…send two copies of ALL of this.

Once your application packet is received, and “accepted for processing” there is a form I-797c mailed. This document does not mean that your application has been Approved, but only that it is now in processing. You can then use your EAC or WAC number to view the current status of your case here. Which is where we will pick back up on Wednesday for our sixth and final installment of this H-2B Visa Employer Series.

As always, if you find this information helpful but have questions or concerns, please do not hesitate to contact Williams Law at info@trentwilliamslaw.com. And mention this Series for a discounted consultation rate.

Pro Tip: Use FedEx and UPS overnight or one-day shipping. This is too important and time is of the essence. Pay the extra money to get your H-2B visa application packet to the proper address as quickly as possible. You have come too far to hurt your approval chances by trying to save a couple of dollars.

*Some documents provided via links may be outdated and readers should always check to make sure they they use the current edition.

-Trent Williams