H-2B Visa Employer Series: Local Recruitment - America First

Welcome back to the H-2B Visa Employer Series. Today’s Post will discuss what happens after you receive the coveted Notice of Acceptance (NOA) from the Department of Labor - Recruitment of Local Workers. An often overlooked or ignored characteristic of the H-2B Visa program is the fact that EVERY Employer must conduct recruitment of local workers prior to receiving H-2B Visa status. The failure to properly follow each and all of the steps discussed below can not only result in a denial of certification, but could also result in penalties or fines or even a bar from the H-2B program entirely. This Post will not only discuss the necessary actions that every Employer must take, but will also discuss how and when to file a Recruitment Report disclosing the actions took and the outcomes of each recruitment effort. It is important to remember main underlying reason for these recruitment requirements is “America First” - If, at any point an Employer has a question about whether their conduct is proper, a great general rule is to ask, “Am I putting America First?”

Recruitment

Once an Employer receives its NOA, the Employer should be ready to recruit immediately. Recruitment must be conducted for a period of 15 consecutive days. While Employers generally recruit by the following efforts, every Employer should review its “Instructions for Recruiting U.S. Workers” included with the NOA as well as Fact Sheet #78 (though it is slightly outdated).

Methods of Recruitment

1. Seasonal Jobs Website (SeasonalJobs.dol.gov) - Remember that Job Order submitted with the 9142B? That Job Order is automatically uploaded and opens upon the Employer’s NOA. (This is much easier than the old newspaper requirement!)

   Remember…America First. “The employer must consider all U.S. applicants resulting from the posting of this job opportunity on SeasonalJobs.dol.gov.”

2. State Workforce Agency - Remember that same Job Order? That Job Order should have been simultaneously submitted to the Employer’s State Workforce Agency (SWA). Sometimes this means sending an email to a representative at the SWA while other state’s process everything through its online portal, and the Job Order opens upon the Employer’s NOA.

   And don’t forget, America First. “Employers must consider all U.S. applicants resulting from the posting of this job opportunity on the opening of the job order.”

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. But the reality is that Employers aren’t exactly dismissing workers without cause so that they can pay thousands of dollars to the U.S. Government and attorneys to bring in H-2B workers.

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. 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.

Treatment of Applicants

This part is pretty simple…Think America First. Employers must consider ALL applicants. Employers “must accept and hire any applicants who are qualified and will be available [during the dates of need.]” If employment is not offered, Employers must provide a lawful explanation as to why an offer was not extended, and the absence of a lawful explanation may result in a reduction of the total number beneficiaries available to the Employer through the H-2B Visa program.

Recruitment Report

Following recruitment efforts, Employers must file a Recruitment Report. This Report is submitted via FLAG and should contain ALL recruitment information. Employers must disclose each method of recruitment and must disclose the results of each method. In the event that there are U.S. workers who contact an Employer, the Employer must disclose information about these individuals, and must disclose whether each individual was offered a position or whether an offer was not extended, if if an offer was not extended, the Employer must disclose the reason for this outcome.

This is the Employer’s opportunity to demonstrate its compliance with all recruitment requirements, and the failure to properly disclose all efforts and outcomes in a Recruitment Report can result in a request for further information and can delay the Employer’s Certification and its ability to proceed to USCIS.

Following the submission of a properly drafted Recruitment Report, Employers generally receive a Full Certification, and may proceed to USCIS and the filing of the I-129, which will be the topic of the next Post in the H-2B Visa Series. If you find this information beneficial, check back on Monday, October 4, for “I-129, I-907, 9142B…How Many Pages?!?”

-Trent Williams

H-2B Visa Employer Series:The 9142B and Common Pitfalls to Avoid

Form ETA 9142B (the “9142B”) and its accompanying documents is the most important step in any H-2B Visa application. This step is the Employer’s opportunity to make its formal request for workers, and to justify its need for these workers. While the document itself is fairly straightforward, there are several areas that can result in Notices of Deficiency or Denials if the 9142B is not approached strategically. This Post will address many common pitfalls, and discuss some general strategy for this step in the H-2B Visa application.

Part I. The Document

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!

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. 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.

Part II. Supplemental Documents

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

• 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.

• 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 Trent@trentwilliamslaw.com so that we can increase your chances of a successful H-2B Visa Application in 2022.

If you’re finding this Series beneficial, please check back on Wednesday for Post 4 of this Series - “Local Recruitment - America First”

*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: The Prevailing Wage Determination

Welcome back to the H-2B Visa Employer Series. For this post, we will be examining the Prevailing Wage Determination. This post will discuss when to file, where to file, and what information to include or exclude. Again, this is all generally speaking and not intended as legal advice for any employers out here who want to take this step without retaining legal counsel.

Each H-2B Visa application begins with the Form ETA 9141, the Prevailing Wage Determination (“PWD”). The PWD is the Employer’s chance to describe the job they are hoping to fill, describe the work conditions, and the geographic area where work will be conducted. While the PWD is a relatively quick and “easy” step in the process, many H-2B Visa applications have been derailed by sloppy or incomplete PWDs. This post is broken into three primary categories: The When, The Where, The What. Hopefully after reading this, you’ll be in a position to navigate this early step in the H-2B Visa application process.

The When

To begin, it is important to file the PWD AT LEAST 4 months prior to your intended start date. For example, if you are applying for an April 1, 2022 start date, make sure those PWD applications are filed no later than December 1, 2021.

The Where

The PWD is filed through an online portal called Foreign Labor Application Gateway or “FLAG”. FLAG will be your best friend and your worst enemy at times, but for better or worse, it is the online portal used by the Department of Labor. So, create an account and get familiar with the portal and the documents.

The What

While there are many parts of the PWD that are straight forward, it is important that information is entered correctly. It is important to your H-2B Visa application that information such as “Employer Name” “Worksite Address” and “Contact Information” is entered correctly.

In addition to this standard information, Employers must also provide a “Job Title” and “Job Description”. Job Title can be anything that makes sense for your company, but Job Description needs to be accurate. There are times when an Employer simply needs general labor, and might designate that the “Employee will perform routine and traditional landscaping services….” This doesn’t need much more explanation, but if that employee ended up performing masonry tasks as part of a hardscape project, the Employer might be in violation of misclassifying the position in an effort to receive a lower wage rate. So, if you expect the employee to do it, list it. It is better to be overly broad than overly narrow generally speaking. (Warning: this may result in a higher wage rate - but it won’t result in costly fines and a potential ban from the H-2B Visa program for improper conduct).

Similar to the Job Description, it is essential that the Employer provide “Additional Places of Employment” if the employees will be traveling to various worksites during employment. While an Employer may file for PWDs for countless worksites across the country, the Employer will need to narrow down these worksites during the next stage of the H-2B Visa application process, as a company generally may not have worksites that are greater than 120 miles apart in the same ETA 9142B application (tune in next week for further discussion). And similar to the Job Description — If an Employer expects or believes it possible for a worker to work in a geographic area, then it is essential that the Employer list that site in its PWD. While locations can be removed during the 9142B filing, an Employer may not add a geographic location that it did not list in its PWD.

As mentioned above, Employers may remove a location from its application during the 9142B filing. If, for example, an Employer thought it wanted H-2B Visa workers to work in 10 different geographic areas, but the PWDs returned at a wage rate of $12.00 per hour for 9 of those areas and $19.00 for the final area, then the Employer might wish to remove the outlier and have H-2B Visa workers not work in that area. And don’t forget, if that final area is included in the 9142B, then the Employer must pay the workers $19.00 per hour not only for work done in that area, but for ALL work because it is the highest wage rate of all the geographic areas that determines the wage rate required to be paid to the H-2B Visa workers.

To conclude, it is essential that your Form ETA-9141 is filled out correctly, provides an accurate Job Description, and lists ALL expected geographic areas of work. While the PWD seems like an easy step in the H-2B Visa application journey, take the time to do it correctly, or it could be a costly mistake that derails an entire application.

If you find these posts beneficial, be sure to tune in Monday, September 27 for “The 9142B and Common Pitfalls to Avoid”

*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: The Big Picture

For the first post of the H-2B Visa Employer Series, we will be looking at the “Big Picture” of the H-2B Visa application process and will discuss a timeline that will put employers in the best position possible for a successful H-2B Visa application.

The H-2B Visa program is available to employers in various industries. The H-2B Visa program is limited to 33,000 visas twice per year (April 1 and October 1). Employers must show that they have a “temporary need” and that this need falls within one of four categories

• Seasonal

• Peak Load

• Intermittent

• One Time

But before any of this is presented, there are initial steps that each employer must take to become eligible for H-2B employer status. These steps are discussed in this post, and this Series will discuss each one in further detail.

1. File ETA-9141 (Prevailing Wage Determination or “PWD”). The PWD specifies the wage rate that employers must pay to H-2B workers. It is best to file the ETA-9141 approximately 4-5 months prior to the employer’s date of need.

2. File ETA-9142B. This document is where the employer requests a specific number of workers, describes the position, the hours to be worked, etc. This is also where the employer asserts/argues its temporary need and which classification is proper. After filing the ETA-9142B, employers can expect a notice of acceptance or notice of deficiency within 7-10 business days.

3. Recruitment Local Workers. After the ETA-9142B has been Approved, every employer must recruit local workers for the available position(s). This includes advertising on a local State Workforce Agency website, Department of Labor Seasonal Jobs Directory, and typically on the employer’s website. Employers are also required to contact past workers. Employers must give fair consideration (if not preference) to local applicants. The recruitment period is 15 days.

4. File Recruitment Report. At the end of the recruitment period, employers must file a Recruitment Report outlining their recruitment efforts and the results of those efforts. Documentation must be provided to show compliance with rules and regulations. Once submitted, a Certification is generally issued within 24 – 72 hours.

5. File I-129. Once an employers receives Certification from the Department of Labor (DOL), employers may file an I-129 with USCIS. This filing includes EVERYTHING that was submitted to DOL and additional paperwork (2 copies of everything!). Employers may choose to file an I-907 with the I-129 (everyone does this!). The I-907 requires that USCIS issue a response within 15 days of receipt. The response may be an Approval, Request for Evidence, or Denial.

6. Recruit Foreign Labor. Lastly, employers or recruiters on the employers’ behalf must recruit foreign workers. These foreign applicants must be from an “Eligible Country” and must go through all the necessary channels to be approved as well.

If this sounds like a lot — it’s because it is. The H-2B Visa program is a lengthy endeavor that can be quite frustrating and expensive for employers who desperately need supplemental labor. But, with a strong application, timely filing, and a little (or a lot) of luck, employers across the country are able to utilize the H-2B Visa program to meet temporary labor demands and avoid countless backlog and overtime hours or even grow and expand their businesses.

If the H-2B Visa program still sounds like something that might help your company, tune in on Wednesday, September 22 for the next Post in this Series - “The Prevailing Wage Determination”

*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

Employers across the country are dealing with a common dilemma in 2021 — and that problem is finding qualified and dedicated employees. For years, I have helped my business-owner clients by leaving no rock unturned, which has often times led to various visa programs, including the H-2B Visa. This post is to announce a bi-weekly H-2B Visa blog post so that employers can learn more about the program and make an educated decision about whether the program might help meet current labor demands and/or scale up operations.

In 2021, there will be greater than 85,000 H-2B Visas granted to employers. These employers include companies in landscaping, construction, food processing, and childcare industries, to mention a few. While the H-2B program has its hurdles and its flaws, it enables thousands of companies to supplement its permanent labor force in a way that would be impossible without the H-2B program. The H-2B Visa program enables my clients to not only meet their current contractual demands, but also enables clients to submit new bids, accept new clients, and expand their operations, all while reducing the overtime hours and risk of burn out for its permanent employees.

This H-2B Visa Series will be published each Monday and Wednesday for the next three weeks, with the first post on September 20 and the final post on October 6. The Series will walk through each step of the application process, and discuss common pitfalls along the way. The Series is not legal advice and does not create any form of attorney-client relationship. Instead, the H-2B Series is meant to be educational and provide you with core knowledge that isn’t available in a clear and concise form from the Department of Labor or United States Customs and Immigration Services. Williams Law understands that the H-2B Visa program isn’t for all companies (it’s completely wrong for many of my clients!), but hopefully by the end of this Series, you will know whether the program is something that could be beneficial for your labor needs.

-Trent Williams

Welcome to the Williams Law Blog

Welcome to the Williams Law Blog. This Page is intended to be informational. Williams Law understands that not every company or individual wants legal services all the time. And it is for that reason that this Page exists. To provide information and knowledge to clients, potential clients, and attorneys so that they can better educate themselves in particular areas of law so that they can make smart decisions and better know if/when they need to formally engage the services of Williams Law. While nothing contained on this Page is or should be construed as legal advice, the hope is that it may be educational and better prepare you to make informed and cost-efficient decisions.

-Trent Williams