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Finding Staff: H2B Visa Process Details (Part 2)


Matt Leverich

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Guest Post by Frank Duda, Golf Course Superintendent at Miacomet Golf Club, Nantucket, MA

With so many courses looking for staff and the impending possible issues with the H2B Visa program, I thought it was interesting to include an actual example of a course using H2B workers and how it the entire process operates. It is fairly complex and due to worker caps you have to start early for the next year's workers. So now is the time to learn about it, figure out if it is right for you and head down this path if applicable to your operation. Frank lays out in detail the entire process, with helpful tips on what to avoid to make the process smooth along with possible issues going forward.  -- Matt

frank_duda.jpgAs mentioned in my previous blog post, there are four distinct steps involved in obtaining H2B workers. First you must obtain a prevailing wage, then after that is obtained you must submit forms to the Department of Labor. Once they certify your petition the third step is approval from the Department of Homeland Security. Once that is achieved the final step in the process is embassy interviews in the workers home country. The fourth and final step may be omitted if your workers are currently in the United States working on a rollover visa.

Obtaining a prevailing wage is the first step in beginning the visa approval process. This is a relatively easy form to fill out and asks basic information about the job, such as hours worked, a job description and a job classification. There is also a section in the form that asks you which prevailing wage method you would like to use to determine what the wage would be. The options are the standard method, a wage survey, a state contract award wage, or a private wage survey. You may file multiple prevailing wage forms and choose from the lowest one. We usually end up choosing the wage survey method, as that is the cheapest for our area.

This year our prevailing wage is $15.13 an hour. You must pay this wage to all workers regardless of if they are on the H2B visa or not. You may pay more than that, but you cannot pay a lower wage.  To determine the wage used in the wage survey method for Nantucket they do a survey of wages in our area, which also includes Martha's Vineyard, and everything South of Boston. 

The regular wage method is usually the highest wage, and the state contract wage, while lower than the regular wage method was slightly higher than the wage survey for our area. In addition, you may elect to do a private wage survey. This costs approximately $550 and is done by a private company.  However, these surveys lack governmental control and therefore can be easily manipulated. Often the government will reject these methods and invalidate your prevailing wage application when you submit your forms to the Department of Labor, meaning you lose the $550 and must start the process again. It usually takes about 30 days to get a response on your prevailing wage so we begin filing our prevailing wages in the middle of October for an April 15 start date.  

Often the government will reject these methods and invalidate your prevailing wage application when you submit your forms to the Department of Labor, meaning you lose the $550 and must start the process again.

The second step of the process is to file the ETA 9142 form with the Department of Labor. If you are having an outside company file your paperwork -- which we do and I highly recommend -- you must also fill out the ETA 9142 Appendix form which authorizes the person filling out the paperwork on your behalf to proceed. Once you have your prevailing wage, you can start gathering the necessary documentation for this form. On this form you must state the number of workers you are requesting be granted an H2B visa. 

At 90 days from the beginning of your visa start date you may run newspaper ads for the positions. You must run the newspaper ads on consecutive days and one day must be a Sunday. Also, at this time you must post the position on the state job bank.  It must remain up for two weeks.

The government is very specific in what must be included in these advertisements. The wage, number of workers needed, start and end dates, hours worked, and any benefits including housing must be listed.

If anyone applies for the job through either the newspaper ad or the state job bank posting you must interview them for the position. It must also be noted that you must hire them unless you have a sound legal reason not to. If you choose not to hire them and the government determines that you did not have a legal reason not to hire them they will still take away one worker from your petition.

If anyone applies for the job through either the newspaper ad or the state job bank posting you must interview them for the position. It must also be noted that you must hire them unless you have a sound legal reason not to.

After the two week posting period has elapsed you must then write a recruitment report stating when you ran the ads and if anyone applied. If anyone applied, you must give all of their information in the report including, name, address, and contact information, and if you hired them or not. Also, you must complete a form known as an Attachment A, which is the monthly breakdown of year-round and seasonal part-time workers, and hours worked as well as wages. This form is used to justify the seasonality and validity of your stated need for temporary workers.  When all this information is obtained you may submit the form and it usually takes 20 ? 30 days to hear a response.

When you receive approval from the Department of Labor you may proceed to the third step in the process, an application to The United States Customs and Immigration Services in the Department of Homeland Security. Generally this is the easiest step in the process. Once you have an approved labor certificate, USCIS typically does not give you a problem.

If you are applying for workers who are currently in their home country, I recommend filling out the petition as unnamed individuals.  This will allow you to send whomever you like to the embassy in step 4 for an interview, and if anyone fails you can replace them easily.

If you are filing for in-country workers there is a little more work involved.  You must gather all of their information, including their passport and visas from the past seven years. This information must all be entered into Form I-129.  When you file at USCIS the fee is $425.  If you choose to do premium processing -- which ensures an answer within 15 days -- it is an additional $1,225. If you choose not to file premium processing you petition is likely to languish at USCIS for several months, delaying the workers arrival. Also it must be noted that if you are filing for both in-country and out-of-country workers, as we do, the fee and premium processing must be paid twice.

The final step is conducted at the US Embassy in the workers' home country. Once you have USCIS approval your workers may schedule their interview at their Embassy. There is often a long wait time for getting an interview, as they only conduct interviews on certain days and times. In the Philippines, they only do interviews on Wednesday mornings.

Once your workers pass the embassy they must conduct exit paperwork, which varies depending on which country your workers are in. Often the Embassy will hold the workers passport for roughly two weeks upon passing the interview. Once their visa is released you may schedule their flights to your workplace.

It is a requirement of the government that you pay your workers' transportation costs; many people will simply reimburse the workers upon their arrival. We book their travel through a travel agency and pay the travel agency directly. This eliminates a lot of confusion and ensures that accurate records are maintained if you are ever questioned if you paid the transportation or not. If your workers are currently in country they skip the embassy interview and are all set but you are still responsible for their travel.

There are several current issues with the program. There are pending cases working their way through the court system that will have an impact on the program. In addition, the visa cap is becoming an issue. Congress has imposed a cap of 66,000 visas for both the summer and winter. On March 26, 2015 this cap was met for the summer visas. This means that no out-of-country worker petitions received after that date will be granted. If your workers are in-country they do not count against the cap and their petition will be granted. There is pending legislation to exempt out-of-country workers who are returning to jobs from counting against the cap but as of this post that has not been approved.

Congress has imposed a cap of 66,000 visas for both the summer and winter. On March 26, 2015 this cap was met for the summer visas.

While this is a lengthy and often confusing process, we have found it to be an integral part of our staffing. This program has helped ensure that we will be able to provide the conditions our members desire. I highly recommend any facility that has issues with staffing look into utilizing the H2B program.

The rules and regulations of the program are ever-changing, so I also recommend hiring someone who specializes in the paperwork to complete it for you.

Finally, start the process as early as possible. Even though you must start the process for next year while you're still going in the fall, it is imperative to get an early jump to ensure you meet the cap and that any unexpected delays do not result in you being short-staffed the following year.

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