Immigration law is always fluid and can change depending on the current political climate. With labor shortages plaguing many U.S. businesses, employers are exploring recruiting foreign workers to fill the vacancies. However, a foreign labor recruiter faces many challenges due to the legal immigration policies which can muddy the water and cause confusion. Failing to correctly carry out all of the necessary steps correctly can result in costly delays and denials.
AW Labor Solutions partners with U.S. businesses to fill job vacancies and help create a dedicated workforce using foreign workers. We help ensure that the right candidate is matched to the right job vacancy so employers can avoid the many recruitment hurdles and challenges.
The TN visa program allows Mexican and Canadian professionals to enter the United States to work. An employer seeking to hire a TN applicant must first show that they need the skilled foreign national to fill the position. Only 63 professions qualify for a TN visa holder.
If you want to hire either an H-2B, H-2A, or TN visa holder, you’ll want to turn to a skilled foreign labor recruiter.
1. Requires Months of Advance Planning
The entire visa process, whether H-2B, H-2A or the TN, takes several months to implement. Each program has different steps and must go through three government agencies once the employer has initiated the process.
2. Working Through the Visa Intricacies
Employers often have a challenging time figuring out exactly which visa will fit their worker needs. The H-2A, H-2B, and TN visas are the most used to fill temporary positions but figuring out exactly which one best fits your business needs can prove challenging. Recruitment agencies in the USA for foreigners can help streamline the process and let you know exactly what visa program will fit your needs for filling your job vacancies.
3. Establish Proof of a Labor Shortage
U.S. employers must file a temporary labor certification with the Department of Labor (DOL) to show that there is a shortage of American workers willing to perform the functions of the job.
A genuine need for foreign workers must be established by the U.S. business seeking to hire H-2A and H-2B visa holders by filing a petition for a Nonimmigrant Worker (Form I-129) to the United States Citizenship and Immigration Service (USCIS). They need to clearly show that there is a lack of U.S. workers qualified, willing or available to fill the positions.
The job order must be filed no later than 120 days before the start date of employment. Also, the job must be open and available for a minimum of 10 days to give local US citizens enough time to express interest and apply.
An employer must also publish a minimum of two print advertisements seeking to hire US laborers for the position. One of them must be published locally on Sunday.
All job listing advertisements must contain the following information:
After submission, the NPC will review the application to ensure it is error free and within compliance. If the application fails to comply with one more of the criteria, then the employer will have the opportunity to take care of the problems and then resubmit within a certain period.
Reports by the National Association of Manufacturing (NAM) have found that approximately 2.1 million U.S. manufacturing jobs will remain vacant throughout the next eight years. In the U.S. there is a drought of engineers and other skilled laborers which is making it difficult for businesses to move forward. Attracting and treating talent is one of the biggest problems faced by manufacturers. They need to expand the talent pipeline to stay afloat which means reaching out to skilled foreign workers. Recruitment agencies in the USA for foreigners strive to assist employers with finding skilled TN visa professionals. Professionals from Mexico and Canada can work in the U.S.
The TN visa program’s origins go back to the North American Free Trade Agreement (NAFTA) which was put in place to allow qualified Mexican and Canadian citizens to enter the United States to work in a professional capacity. To qualify for a TN visa, the applicant must be one of 60 plus qualifying professions such as physicians, pharmacists, lawyers, teachers, scientists, and engineers.
A TN visa holder can work in the United States for up to three years and then the visa can be extended. Also, children and spouses are allowed to enter the country. They may study in the U.S., but are not allowed to work.
Each year, the U.S. Department of States issues over 700.000 TN visas each year.
4. Language Barriers
It is common to face language barriers when recruiting foreign workers. However, in the United States, 67.3 million people speak at least one foreign language. Reports show that 53% of foreign workers are proficient in English. If your foreign workers don’t speak English and you are unable to speak their native language, then you’ll experience complications when giving instructions. Language barriers cause obstacles when working with foreign employees. However, you also might want to consider hiring bilingual assistance to streamline communication if you encounter any problems.
5. Constantly Changing Legislation
Employer Requirements
It’s hard to stay up to date with legislation that frequently changes. At this time there is a strong focus on changing the H-2A visa program which will also affect the H-2B visa. The possibility exists that agricultural workers carrying out any type of construction will be excluded from the H-2A program. Instead, they will be classified in the H-2B visa category for construction work. Considering only a certain number of H-2B visas issued each year then the addition of construction workers to the H-2B visa program will mean less visas issued for agricultural businesses.
As a U.S. employer, why struggle trying to figure out the changing legislation? When you work with a skilled foreign labor recruiter then you won’t have to worry about the intricacies of changing laws and requirements.
6. Continuous Requirements
Once you go through all the requirements to hire a foreign visa holder to fill your position, you might think it’s smooth sailing, but you are still required to conduct more paperwork. With an H-2B visa, you must notify the USCIS within two days in the following circumstances:
With the H-2A visa you’ll be faced with carrying out the following:
7. Lack of Human Contact
One of the biggest challenges faced by employers who opt to utilize the foreign workers is the lack of human contact involved throughout the hiring process. Potential employees often enter the country without ever having met the employer. However, skilled recruitment managers will evaluate each worker to determine if they are the proper fit for your company’s job needs. A foreign labor recruiter evaluates the potential foreign workers to ensure they are the right choice for the position.
With a foreign labor recruiter, a team of seasoned professionals work closely with US business owners to help fill their workforce needs while ensuring that compliance with all local, state, regional, and federal regulations occur. In addition, the foreign labor recruiter will also ensure that skilled laborers and professionals are hired to meet all employment needs. The goal is always to provide a scalable legal workforce for U.S. businesses.
8. Visa Program is a Gamble
The H-2B visa program is immensely popular because of the high demand for foreign workers to fill nonagricultural jobs, but it’s also a gamble because there is a cap on how many visas are issued each year. You might invest a considerable amount of money in the visa process only to be denied the employees needed to complete your job.
At this time, the visa cap for the H-2B has been set at 66,000 per fiscal year. 33,000 visas are issued during the first portion of the fiscal year which runs from October 1 to March 31. During the section portion of the fiscal year, which runs from April 1 to September 30, an additional 33,000 visas are issued.
On occasion, Congress will increase the number of H-2B visas granted, but there is no guarantee that it will happen. On March 31, 2022, an announcement was issued by the Department of Homeland Security (DHS) announcing that the H-2B visa program cap for the second half of the fiscal year would be increased by another 35,000 visas. Although the increase is promising to employers, the DHS is also requiring that employers again advertise the position to US workers before using the visa program which increases the costs for employers.
The H-2A visa and the TN visas have no cap in place which makes them more successful
Wages are an expense that U.S. employers cannot overlook.
An employer of an H-2A visa holder must cover the following expenses and needs:
All H-2A workers must be paid twice per week. H-2A employers are required to pay which wage is higher of the following:
The H-2B visa requires that wage paid but the highest of the prevailing wage amount. The employer is required to submit a request to the National Prevailing Wage Center (NPWC) to obtain prevailing wage information using form 9141. The NPWC will then send the employer information that outlines the prevailing wage and period of validity. The prevailing wage must be determined 130 to 150 days prior to the job’s start date.
With the H-2B visa, the employer pays for inbound and outbound transportation plus meals and lodging to the place of employment.
An employer must always pay their H-2B worker the rate of pay listed in the job order. The wage is the highest of the prevailing wage rate. There can be no unauthorized deductions in the paycheck and no money can be given back to the employer. The wage paid is determined when the employer submits the 9141 form for prevailing wage information to the National Prevailing Wage Center (NPWC). The NPWC will then send the employer the prevailing wage amount on a form that the employer must retain. The prevailing wage is always determined from 130 to 150 days before the work is scheduled to start.
It is common for a would-be employer to halt the entire H-2B process when they find out the prevailing wage determination. In 2021 and 2022, the prevailing minimum wage has been much higher than the U.S. federal minimum wage. As of 2022, the prevailing wage determination is about 60% higher than all of the state’s minimum wages.
Many wonder why the PWD has been higher in 2021 and 2022 than the wage of U.S. workers. The increase is determined in the following ways:
Meeting the wage requirements for an H-2B worker is one of the most challenging aspects of the entire program. However, there are other hardships that employers must cope with concerning the PWD such as determining what duties the worker will conduct at what job site five months before the visa holder even starts work.
Once the H-2B workers start working, they must then continue working the same job at the same jobsite. The process is extremely hard for a construction laborer who might frame one day and pour concrete the next. When the worker transitions from one job to the next then the wages change because a mason receives higher wages than a framer.
Employees can request several PWDS so that an H-2B worker can carry out multiple jobs for various degrees of wages, but the paperwork process is extremely challenging because the employer must calculate each hour the H-2B visa holder works at different wage rates and keep the job categories separate.
The DOL will not certify a job that goes through multiple commuting areas unless the H-2B worker is holding a forestry position or carnival job. An employer cannot have a worker travel outside the designated area to work or carry out different job tasks or they violate the requirements.
Employers of an H-2B worker can pay using commissions, bonuses, and incentives, but the amount must equal the equivalent required wage. If it does not, then the employer is required to issue a supplemental amount that ensures that the pay is the same as what the H-2B employer would earn as an hourly wage.
If an employer wishes their H-2B employee to meet certain productivity criteria, then it must be outlined clearly in the job order and it must be a widespread practice for any U.S. worker who is performing a similar job function. Employers cannot use productivity standards as an excuse to pay less than the hourly wage.
Whenever an H-2B worker works overtime, then they must be paid overtime as outlined in the Fair Labor Standards Act. The paycheck of an H-2B worker must have all the deductions required by law. On the job order, it will clearly state the needed job deductions. If a deduction is disclosed, then it is not allowed.
An H-2B employee must be paid every two weeks. However, if a region has a different prevailing practice, then the employer can pay every week. All payday frequency must be outlined on the job order.
Employers are expected to pay an adequate salary that reflects the professional’s skills and education level. When the foreign national meets with immigration officials, the immigration officials will evaluate the job offer to ensure that the position’s salary reflects the professional’s experience and is competitive.
The housing regulations for an H-2A visa holder require that an employer provide no-cost housing if the worker is unable to return to their actual place of residence. Many farmers who want to utilize the H-2A visa program face difficulties due to the housing and transportation requirements.
With the rising costs, many agricultural operations are struggling to afford housing and transportation for workers. The H-2A visa requires that a farmer provide their workers with housing and transportation from their country of origin to the job site.
Building housing is expensive and rife with problems due to state and county codes. An employer can pay for rent for accommodations and any housing related charges. Whatever housing that is provided must have a fully equipped kitchen where the worker can prepare meals.
Providing living expenses for an H-2A worker averages $9,000 to $13,000 per worker annually..
An employer is not required to pay for or provide housing for H-2B workers. The foreign worker must pay for their own housing costs. H-2B worker housing is often problematic because the worker sometimes does not have the funds needed to secure housing.
Agricultural business owners must pay the following expenses for their H-2A workers. Under the visa program, the employer must provide housing, food, transportation, and wages for any nonimmigrant, temporary foreign H-2A worker who has entered the U.S. to work seasonally or temporarily in agricultural positions.
Below are the expenses that an H-2A employer must provide:
An employer must also provide transportation for H-2A visa holders to and from their country of origin. In addition, they must also pay for transportation to and from the job site daily during the work week which can quickly become costly if the job site is located a considerable distance from the housing of the worker.
The employer is required to pay for the H-2B worker’s transportation into the country to the jobsite and back to their home country. They must also pay for meals and lodging for the worker until they reach the worksite. All plans on how the employer is going to pay for transportation, lodging, and meals must be outlined in the job order. The employer can either pay in advance for the expenses or reimburse the H-2B worker on their first pay period. All border crossing and visa-related expenses must also be covered
TN Visa Expenses
Employers are not required to pay relocation expenses, specific wages, or housing costs for a TN visa holder. However, as with so many professional positions, employers who want to hire the best talent should put together a lucrative package when making a job offer.
Hiring foreign laborers and professionals is a challenging process. If you are an employer seeking to hire foreign laborers and professionals, then you’ll face numerous challenges. Partnering with a foreign labor recruiter can help streamline the process and ensure that you get the talent and laborers you need. At AW Labor Solutions, our skilled team will collaborate with you to achieve a scalable legal workforce to meet your needs.
