The H-2B Visa Program Strengthens America
Fall 2007
Many communities across America continue to enjoy a relatively low unemployment rate compared to the rest of the nation. This is especially true in the low-tech (or no-tech) service industry sector, where employers find it impossible to locate sufficient numbers of American workers to meet their hiring needs. Employers, needing to turn to foreign national workers to meet their needs, have the choice of either hiring undocumented workers, or following complicated and convoluted rules in order to comply with U.S. law. The H-2B temporary worker program is the one place where businesses can turn if they want to follow the law. Employers choosing to obey the law have an extremely difficult path to follow. Under the Immigration and Naturalization Act and Departments of Labor, Homeland Security and State regulations, employers have to undergo rigorous scrutiny, and have only 120 days prior to the date they need a temporary worker in order to complete the process. STEP 1: State-level departments of labor: Between 60 and 120 days prior to the first day the temporary worker is needed, the employer files and processes a Labor Certification Application with the local state workforce agency (SWA). The SWA reviews and supervises the employer’s full efforts to recruit US workers (including publishing three days of advertisements in a major regional newspaper), completes the processing, and sends the case to the U.S. Department of Labor for the processing of the actual Labor Certification. STEP 2: US Department of Labor: DOL reviews the Labor Certification Application to determine whether sufficient recruitment took place to attract potential US workers, and whether the wage is high enough to ensure that it will not adversely affect wages paid to Americans in similar positions. If satisfied, DOL certifies the application and sends it to the employer. STEP 3: US Department of Homeland Security: The employer files an H-2B petition with US Citizenship and Immigration Services (USCIS), enclosing the approved Labor Certification with the petition. The H-2B petition details about the company’s recruitment efforts, reasons why the company needs these temporary workers, and how the company will pay the workers. USCIS often requests additional information about the temporary nature of the position and/or the temporary nature of the employer’s need for foreign workers. If satisfied, USCIS approves the petition. STEP 4: US State Department: Following approval of the H-2B petition, each temporary worker then files an H-2B visa application with the appropriate U.S. Consulate. The Consulate conducts a thorough security background check of the individual, and makes a determination whether the individual has sufficient ties to his or her home country and so return home rather than staying in the US. If satisfied, the Consulate issues the visa and the H-2B temporary worker comes to the US. There have been informal indications that the Immigration Service may close the H-2B program prematurely this year. If it does so, companies needing temporary workers in the summer season will be left in the cold. These employers include forest fire fighting agencies, seafood processors, resorts and tourist facilities, recreational management companies, and other seasonal employers in every corner of America. Without H-2B temporary seasonal workers, America would be a poorer place. Given that this is the only legal option to fill significant labor shortages, America’s employers rely on the H-2B program to serve the needs of our children and families, especially during the critical summer months; Should Congress choose to close the program by not enacting the Save Our Small and Seasonal Businesses Act of 2007, some employers may likely be driven to turn to undocumented workers in order to provide essential services to their clients.