International Corner

Recently, NRCA has been receiving telephone calls from its contractor members regarding what they call "a new visa program for immigrant workers." The program to which they are referring is not new. In fact, the H-2 visa program, which was developed to bring workers to the United States to fill the temporary needs of employers, has been in existence since the 1950s. The program was split into two categories in the 1960s—H-2A for temporary agricultural workers and H-2B for temporary nonagricultural workers, such as roofing workers.

The following information answers questions about the H-2B program.

Visa classification

The H-2B visa classification gives U.S. employers the opportunity to hire nonimmigrants to perform temporary nonagricultural work in the United States. The work must be validated as one-time, seasonal, peak-load or intermittent.

There is a cap on the number of foreign workers who can receive H-2B status during each U.S. Immigration and Naturalization Service (INS) fiscal year, and this year's (October 2002-September 2003) cap is 66,000 workers. Although the caps for other work visa classifications sometimes are met within the first six months of an INS fiscal year, Theresa Brown, director of immigration policy for the U.S. Chamber of Commerce, says the cap for H-2B visas never has been met.

H-2B labor certification is issued to employers, and it is not transferable to any other employer nor among workers. Labor certification may be issued for up to one year and is renewable for a maximum of three years. The process to obtain an H-2B visa typically takes 90 days to 120 days, but INS can expedite a petition for an additional fee. INS and the U.S. Department of Labor (DOL) suggest employers begin the H-2B certification process at least 60 days but no more than 120 days before a worker is needed.

Application process

To begin the process, an employer must submit an Application for Alien Employment Certification (Form ETA 750) to his local State Workforce Agency (SWA), which serves the area of proposed employment.

Because employing a foreigner cannot displace or adversely affect similarly employed U.S. workers' wages and working conditions, an employer must prove he has been unsuccessful in hiring a U.S. worker for the position through recruitment efforts as specified by an SWA. An employer must prepare and submit a report summarizing his recruitment efforts' results, which will be evaluated by the SWA and forwarded to the appropriate regional SWA office. DOL officers grant labor certifications if there is proof qualified U.S. citizens are not available for the job and the employment terms will not adversely affect U.S. workers.

An employer then must submit a labor certification with the visa petition (INS Form I-129) to INS with the filing fees, which typically are $130 per petition. In this petition, an employer must name and provide basic information about the prospective visa beneficiary he has recruited. For emergency-type situations, an employer can apply for a blanket petition without providing visa beneficiary names. Each petition can include multiple prospective visa beneficiaries if they are from the same country and will perform the same job. An employer can pay an additional $1,000 per petition to receive INS premium processing, which provides 15-calendar day processing.

If a petition is approved, INS will send a Notice of Approval (Form I-797) to the employer and notify the U.S. Consulate in the visa beneficiary's country. Petition approval does not guarantee visa issuance. A beneficiary must apply for a visa at the U.S. Consulate in his country and wait for final determination.

Plan ahead

This process does not yield immediate results, but if you know in advance you will need additional workers to meet your projected work log, seeking foreign workers may be a solution. The application process does not include recruitment efforts to acquire prospective temporary workers, which can be time-consuming and costly.

If the application and recruitment processes seem too cumbersome, there are companies and law firms that provide immigration assistance for a fee, and some specialize in the H-2B visa program.

For more detailed information, visit DOL's Web page, www.ows.doleta.gov/foreign/h-2b.asp, or INS's Web page, www.ins.usdoj.gov/graphics/services/employerinfo/index.htm.

Olicia Hinojosa is NRCA's manager of international relations and work force programs.