THE H-2b PROCESS

First and foremost is the H-2B is a temporary visa. The Immigration and nationality Act (INA) provides for a temporary visa to be issued to meet the need of an American employer in one of four temporary circumstances:

Seasonal
Peakload
Intermittent
One-time occurrence

For the Horseman the season is typically defined as Peak Load. Peak Load means that although the operation has a year round need , during ten (10) months of the year or less the operation has a significantly greater need for workers in the particular occupation that is impacted. The peak load season is typically proven through provision of staffing data charts and schedules establishing the reason and actuality of the peak load need.

For practical purposes Immigration has ruled that any need lasting longer than ten continuous months is not temporary and therefore does not qualify for approval under the temporary H-2B visa.

Therefore devising the temporary nature of the need is critical to ultimate success in gaining approval of the H-2b visa.

The initial consultation between Horseman Labor Solutions, and our clients is usually the point at which the theory of the case is devised and our course of action is determined.

Once we devise the temporary nature of the position we begin the “labor certification” process. Labor certification refers to a procedure in which the employer works with the Department of Labor to determine whether there are available American to fill the particular position at need. It is important to always remember that the H-2b visa is only an available option if no Americans are available or willing to fill the particular temporary position.

To establish that no American are available to fill the position the department of labor in the state where the employee shall work will supervise a recruitment campaign to be conducted by the employer to advertise the open position(s) and return the results of the recruitment to the DOL.

Upon completion of a ten-day recruitment period the state DOL will certify the procedure and ship it to USDOL for final certification. Once USDOL issues the “labor certification” the employer can petition the USCIS for approval of the requested number of visas. The employer can request a number of visas that is equal to the original number requested minus the number of qualified Americans who came forward for the job. For example if an employer petitions 50 landscapers and five (5) American apply for and accept the job then the USCIS will grant 45 visa slots to the petitioning employer.

Finally the approved visas will be cabled to the designated US Consulate for issuance to the international workers who have been named by the US employer.

For greater detail regarding the process please read below:

The H2B Visa application process involves four government agencies: the state DOL, USDOL, USCIS and the US State Department Consulate in the country of origin of the international worker. The initial phase of the application process must begin no earlier than 120 days and no less than 60 days prior to employer’s desired beginning date of employment. It is strongly suggested to start the maximum 120 days prior to your need so you have some spare time to remedy any problems that may occur in any one of the four steps of the process. (All dates are approximate!)

Step 1:

Obtains prevailing wage from State Workforce Commission and submits petition with letter of justification for dates requested and defined need to State DOL.

Step 2:

In response to state DOL “job order” create ad based upon client’s description of work to be performed, place ad in major publication of record for area for three consecutive days (one week)

Step 3:

Wait ten days from date of initial publication to interview all interested applicants;(week 2-3)

Step 4:

Report results of recruitment to state DOL – including number of American applicants who applied, number hired and reasons for those who weren’t hired. (week 2-3)

Step 5:

State will forward the petition to USDOL for certification (week 3-4)

Step 6:

USDOL will issue labor certification (week 6-10)

Step 7:

Employer will submit to USCIS form I-129 H-2B “Petition for Alien Nonimmigrant worker – temporary laborer” with attached labor certification and names of prospective international workers.

At this point the employer can choose to file standard or premium(expedited) processing. Standard processing costs $190.00 and $150 Fraud Detection fee but takes 3, 4 sometimes six months to gain approval. In a ten months seasons this can be most of your time!

Premium(expedited) costs an additional $1,000.00 (total $1,1340.00) but is a guaranteed fifteen (15) days to approval – if everything is filed correctly. If the request further evidence they must render a decision 15 days after resubmission by the employer. HLS strongly encourages their clients to utilize the premium process option when submitting the final petition the USCIS.

Step 8:

The approved petition will be cabled to the designated consulate in country of origin of workers.

Step 9:

Workers will present themselves at the consulate to pick up their visas. (120 days after filing) This last step is crucial – the worker must be thoroughly vetted for security clearance prior to presentation. Further the worker must convince the consulate that he intends to leave the US at the end of his or her stay in the US. If he can not prove this to the satisfaction of the consular official he will be denied.