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