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How to use the H-2B program to hire legal temporary guest workers

Markets | June 1, 2018 | By:

For tent and event rental companies, the busy season not only brings the promise of more work, it also ups the need for more workers, a worry for businesses facing potential labor shortages. In response, some U.S. businesses turn to the H-2B program, hoping to fill their seasonal needs by employing legal temporary immigrant labor, says Arnulfo Hinojosa, vice president of the Federation of Employers & Workers of America (FEWA).

Formed in 2003 and headquartered in Bay City, Texas, FEWA is a member-funded national nonprofit association that serves as a voice for the legal guest worker community utilizing the H-2B and H-2A programs, says Hinojosa. Membership numbers approximately 7,500 and consists of employers and workers.

Hinojosa became involved with the H-2B visa program while still in college, working for Scott Evans (FEWA’s founder and current president) who at the time owned a landscaping business. Hinojosa helped him with that business and the visa program. This led to the formation of FEWA in 2003. Hinojosa has been with the organization, serving as vice president, since its founding.

He has managed the processing of more than 42,000 H-2B workers for 2,200 different U.S. companies in 45 states. IFAI interviewed Hinojosa to learn more about how tent and event rental businesses can successfully navigate the H-2B program.

IFAI: Can you provide a definition of the H-2B nonimmigrant program? How many foreign workers are allowed to enter the United States under it?

Hinojosa: It permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. It’s for seasonal jobs that don’t require a college degree. The employment must be of a temporary nature—temporary status can range anywhere from nine to 10 months per season—regardless of whether the underlying job is permanent or temporary. The H-2B program provides a solution to the current labor market shortage with a statutory cap limitation of 66,000 workers per fiscal year.

IFAI: Has this program recently changed in a way that affects companies seeking foreign workers? And, how does what is taking place in Washington, D.C., stand to exert even more of an impact?

Hinojosa: For fiscal years 2016 and 2017, Congress and the current administration allowed for temporary expansions of the cap limitation. There are also two bills that have been introduced that would provide certainty for seasonal employers, make the program run more efficiently and provide permanent cap relief: Strengthen Employment And Seasonal Opportunities Now (SEASON) Act (H.R. 2004) and Save Our Small and Seasonal Businesses Act (S. 792). We’re trying to get support from Congress, seeking additional sponsors and trying to get these bills signed into law.

IFAI: What are some of the concerns employers have around the H-2B program?

Hinojosa: That their specific requests may not be granted due to the cap limitations. It really depends on the state of the economy. For example, during the recession the need wasn’t as great so the cap wasn’t hit. But, as the economy has improved, the need has become greater and so cap limitations become more of a concern for employers.

The competition for the number of visas allotted and the timing involved in completing the entire process (4 to 5 months) has made the current H-2B program challenging for employers. The total cap of 66,000 workers is divided by two; 33,000 for the first half beginning Oct. 1 and 33,000 for the second half beginning April 1. On Jan. 3, 2018, the U.S. Department of Labor (DOL) announced it had received approximately 4,500 applications covering more than 81,600 worker positions in one day for the second half of the fiscal year.

IFAI: What are some of the possible solutions to the difficulties/challenges you mentioned?

Hinojosa: Outside of Congressional action for a permanent expansion of the program, it is highly recommended that an employer join FEWA or hire an immigration attorney that can assist with all the requirements necessary to participate in the program. This is particularly important because the requirements are always changing.

IFAI: What are some of the misconceptions about the H-2B program?

Hinojosa: One major misconception is that H-2B workers are employed because they’re a source of “cheap labor.” This could not be further from the truth. The DOL sets a prevailing wage that won’t adversely affect the local labor market. On top of a fair wage, each employer participating in the program is responsible for paying filing fees to the government to obtain approval to employ foreign workers. If the seasonal workers were available, it would be much cheaper for employers to hire locally.

This leads to another common misconception—that H-2B workers take away potential American jobs. For an employer to qualify for this program, they must prove two things: first, that they have a temporary seasonal need for labor; second, that there are no willing and able local workers available to fulfill the seasonal positions. The DOL regulates the testing of the local labor market. Each employer must advertise the job details along with the prevailing wage set by the DOL, giving local applicants the first opportunity for the positions prior to obtaining certification to be able to employ foreign labor. All results of any applicants applying for the positions must be reported to the DOL. Employers utilizing the H-2B program have difficulty finding enough U.S. workers or even keeping them due to the seasonal nature of their businesses.

IFAI: Can employers legally lay off U.S. workers, replacing them with H-2B workers?

Hinojosa: No. The DOL and Department of Homeland Security (DHS) have worked together to ensure that both American and H-2B workers are protected in the program.

IFAI: Any other common misunderstandings held by those unfamiliar with the program?

Hinojosa: Yes, that the H-2B program is an option to provide work authorization to undocumented workers currently residing in the United States. This isn’t the case. Each worker applying for an H-2B visa must do so at the U.S. Consulate or Embassy in their home country. When applying for a work visa, each applicant must submit digital fingerprints and photos, as well as go through a personal interview with a U.S. Consular official. Any illegal presence in the United States could result in a denial of the visa application.

Regarding the potential H-2B workers, it is also perceived they all have intent to permanently reside in the United States. That’s not the case and not how the program works. During the consular interview, the H-2B applicant must demonstrate that he or she does not have immigrant intent. These workers leave their wives, children and immediate family at home with an opportunity of making ten times what they could make in their home country in just a part of the year. One of the biggest benefits of the program for the workers is that they can travel across the border legally. Many H-2B workers have been returning year after year with the knowledge that participating in the H-2B program is for a seasonal demand only.

IFAI: What are some of the best practices tent and event rental companies should follow to ensure they’re in compliance with federal regulations?

Hinojosa: Although there are many regulations that govern the H-2B program, it is important to understand that all the benefits, wages, working conditions, travel reimbursements, housing arrangements (if any), etc., must be offered to U.S. workers and H-2B workers equally, giving equal opportunity for the job position. You’ll be required to disclose a copy of your job order outlining all the specifics of the job to both your U.S. workers and foreign workers in a language understood by the worker.

IFAI: In your experience, what common mistakes do companies tend to make that undermine the employer/foreign employee relationship?

Hinojosa: One of the biggest issues an employer can face when employing a foreign labor force is the language barrier. It is recommended not to rely on one staff employee to act as the translator for your entire foreign workforce. Open communication is
key to any organization, and having a system in place where all employees can ask questions or stress any concerns regardless of the language is important.

IFAI: Anything else to keep in mind concerning this program and/or foreign workers?

Hinojosa: [Businesses] need to give themselves enough time to do the necessary research around this program and to start the actual visa process at least six to eight months prior to when they will need workers. Accuracy and timely filing are important if an employer wants a fair opportunity to obtain the number of visas they are requesting.


Pamela Mills-Senn is a Long Beach, Calif.-based freelance writer.

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