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.
