Major Changes in the World of Seasonal Visas

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Jeremy Washington
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1 Major Changes in the World of Seasonal Visas Understanding the Government s New H-2B Seasonal Visa Regulations A Presentation by Attorney Keith A. Pabian A member of the team at Pabian Law, LLC

About Pabian Law Pabian Law is a premier Boston, Massachusetts-based immigration law firm that specializes in representing companies, organizations, seasonal businesses, universities, sports

2 About Pabian Law Pabian Law is a premier Boston, Massachusetts-based immigration law firm that specializes in representing companies, organizations, seasonal businesses, universities, sports leagues/teams, and athletes. Pabian Law, LLC is dedicated to our clients. Whether a client is hiring a new employee, sponsoring an employee for U.S. Lawful Permanent Residency, or has an issue with the government, Pabian Law, LLC is committed to providing a fresh, cutting-edge, client-centered approach that is results-driven and customer-service focused. The states shaded in blue represent the states across the U.S. where Pabian Law has company, organization, non-profit and university clients. In addition to the United States, our corporate immigration practice represents clients in Canada, the United Kingdom, Puerto Rico, and worldwide.

3 Overview of today s presentation About H-2B visas What happened? Understanding the new regulations Comparison of key changes Comprehending the new application process The H-2B cap issue What s next?

The H-2B Seasonal Visa Seasonal visa petition (now available for up to 9 months) Need to apply for new visas every year Employee will need to leave USA annually for about 3

4 The H-2B Seasonal Visa Seasonal visa petition (now available for up to 9 months) Need to apply for new visas every year Employee will need to leave USA annually for about 3 months at a minimum or transfer to another employer Imperative to prove seasonality/peak load of business Should plan to start process 6½ months before the beginning date of need

5 H-2B Seasonal Visa Process what happened? On March 4, 2015, the U.S. Department of Labor lost a case in the northern district of Florida and in its decision, the court held that the U.S. Department of Labor (DOL) lacked authority to issue regulations relating to H-2B visas As a result, the U.S. Department of Labor and U.S. Citizenship & Immigration Services (USCIS) announced that the agencies were suspending the processing of H-2B visa petitions On April 15, 2015, H-2B visa petitions at both agencies resumed On April 28, 2015, USCIS and DOL announce new Interim Rule governing H-2B visa process

6 Why does the H-2B visa matter to your organization?

7 Understanding the new regulations Became effective immediately But really affect petitions with start dates of October 1 st and later Not all procedures in place yet Increased focus on protecting US jobs and H-2B employees Added requirements and procedures Be careful - $10,000 per violation fine

8 Comparison of key changes General Requirements Matter Previously Now Maximum Length of H-2B visa Ten (10) months Nine (9) months Required Hours per week 30 hr/week 35 hr/week Contacting former U.S. workers with employment opportunity Employer must offer position to former U.S. workers who were employed in the same position within the previous 120 days. Employer must offer position to former U.S. workers who were employed in the same position within the previous twelve (12) months. This does not include workers who were fired for good cause. The DOL now strictly requires documentation that former U.S. workers were actually contacted by the Employer, in case of audit. Notifying government of separation of corresponding US workers Employer must notify USCIS and ETA within two workdays of separation from employment of an H-2B worker. Employer must notify USCIS and ETA within two workdays of separation from employment of an H-2B worker AND separation of a corresponding US worker (i.e., a US worker employed in a similar role as the H-2B worker). Timing of Petition with DOL No specifications required The employer must submit the DOL petition between 75 and 90 days before the date of need.

9 Comparison of key changes Process - Wages Matter Previously Now Forms of payment No specifications regarding form of payment (benefits such as lodging and rental cars could be counted towards wages) Employer must pay at least the offered wage, either in cash or check, free-and-clear of any conditions on payment. If lodging is provided as part of wage, must be clearly deducted from paycheck. Any such deductions must be stated in the job order. Rental cars, etc. are not permitted as forms of payment. Frequency of pay No specifications required Employer must pay the more frequently of every two weeks or according to prevailing practice in the area of intended employment. Guarantee of payment to H-2B workers, regardless of whether they work No specifications required Employer must guarantee to offer wages for a total number of work hours equal to at least threefourths of the workdays in every 12-week period (or, for job orders lasting less than 120 days, 6-week period). Earnings statements No specifications required Employer must keep accurate pay and hours records and supply workers with earnings statements on or before each payday very specific requirements regarding what must be in statements.

10 Comparison of key changes Process Fees & Expenses Matter Previously Now No specifications required Inbound travel expenses (to U.S.) Outbound travel expenses (back to home country) Employer must pay for outbound travel only when worker is dismissed prior to employment end date Employer must pay for or reimburse H-2B employees for travel from home country to U.S., including related daily subsistence, for all employees who complete at least 50% of the employment period. *Reimbursement for inbound travel generally must be given to H-2B employees within first workweek. Employer must pay for or reimburse H-2B employees for travel from U.S. to home country, including daily subsistence, for all employees who are dismissed prior to employment end date OR worked until Employment End Date. Visa and visa-related fees No specifications required Employer must pay or reimburse ALL visa and related fees, including Visa Interview fees at U.S. Consulate (usually $190 per applicant) and travel to U.S. Consulate (if bus, train, or flight is required). *Reimbursement must be given to H-2B employees within first workweek. Job-related supplies and tools No specifications required Employer must provide all tools, supplies, and equipment needed to perform the job. Inbound and outbound travel for U.S. workers in same occupation as H-2B workers No specifications required Employer must provide or reimburse inbound and outbound travel and subsistence during travel for all U.S. workers in same occupation who are not reasonably able to return to their residence within the same workday.

11 Other important changes Registration with DOL proving temporary need every 3 years or if job opportunity has changed significantly Additional language requirements to include in recruitment materials Obligations with use of Recruiter Posting Notice or notice to CBA Providing SWA Job Order to H-2B employees and U.S. workers Retention of documents Posting of workers rights poster Notification to USCIS and US DOL of early separation (within 2 workdays) Penalty - $10,000 USD per violation

12 The new application process 150 days prior to employment start date File Prevailing Wage Determination (PWD) Application with DOL If needed, register employer with DOL (prove seasonality)! 90 days prior to employment start date File SWA Job Order (so long as PWD is valid!) File Application for Temporary Employment Certification with DOL ***7 day processing by DOL*** After Notice of Acceptance received from DOL, and within 14 days of receiving the Notice of Acceptance: Place 2 newspaper ads Employer sends job offer letter to all US workers who held same occupation in previous 12 months who were not terminated for cause Contact CBA representative or post/hang Posting Notice for fifteen (15) business days Conduct any additional recruitment steps required by DOL

13 The new application process (continued) After recruitment steps taken: Submit Recruitment Report to DOL Continue to receive and review US worker applications until 21 days before employment start date and update Recruitment Report After Certified ETA 9142 is received by DOL File H-2B visa petition with USCIS (same process as prior to Interim Rule) Will need new seasonality proof every year Upon approval by USCIS, employees can either go to U.S. consulates or embassies abroad for visa issuance or can begin working for your company if the USCIS petition was a transfer/extension petition

The H-2B visa cap issue Congress set the following statutory limit on the total number of foreign nationals that can be approved for H-2B visas in a given year: From October 1 st to March 31 st :

14 The H-2B visa cap issue Congress set the following statutory limit on the total number of foreign nationals that can be approved for H-2B visas in a given year: From October 1 st to March 31 st : 33,000 This cap was hit on January 26, 2015 in the most recent H-2B year From April 1 st to September 30 th : 33,000 This cap was hit on March 26, 2015 in the most recent H-2B year Plan your seasons as close to October 1 st and April 1 st as possible! ***Importantly, H-2B transfer petitions are EXEMPT from the cap (incountry petitions)***

Tips & Best Practices for Navigating the H-2B Process 1. Plan, plan, plan 2. Start the process as early as possible (we now recommend starting/planning 6 ½ months in advance) 3.

15 Tips & Best Practices for Navigating the H-2B Process 1. Plan, plan, plan 2. Start the process as early as possible (we now recommend starting/planning 6 ½ months in advance) 3. Communication with employees regarding the process 4. Annual reviews of the process 5. Put multiple employees on one application 6. The Unnamed Beneficiary 7. Do not tailor dates of need to one (1) employee, even if behind schedule 8. Follow the rules major consequences for violations

The Pabian Law Solution National presence with client-centered, customerservice dedicated approach Unique focus on the seasonal industry We have high-level contacts at the immigration

16 The Pabian Law Solution National presence with client-centered, customerservice dedicated approach Unique focus on the seasonal industry We have high-level contacts at the immigration department and in embassies and consulates around the world Fast processing of visas with cost-effective prices We have developed processes to save employers money on government filing fees

17 Questions Keith A. Pabian Pabian Law, LLC 40 Speen Street Suite 401 Framingham, MA (617)

USCIS Update Dec. 18, 2008

Office of Communications USCIS Update Dec. 18, 2008 USCIS FINALIZES STREAMLINING PROCEDURES FOR H-2B TEMPORARY NON-AGRICULTURAL WORKER PROGRAM WASHINGTON U.S. Citizenship and Immigration Services (USCIS)