Everything employers should know about tn visa programs

Construction worker pour cement for sidewalk in concrete works with mixer truck with wheelbarrow
U.S. employers are struggling to fill temporary, seasonal, and intermittent job positions, but in many regions, there is a severe local labor shortage. In an effort to keep their businesses operational, owners are turning to H-2B visa recruitment agencies to overcome hiring difficulties and worker deficiencies.
The H-2B visa program is used to bring in non-agricultural workers to fill job positions if there’s a shortage of U.S. workers. In recent years, there has been a substantial increase in construction companies turning to the H-2B visa program to fill their laborer needs. Landscaping, hospitality, food packaging, retail business, carnival, resorts, restaurants, and manufacturing businesses also often hire their seasonal workers using H-2B foreign workers.
Employers Utilize the H-2B Visa Program
The employer must meet certain regulatory requirements and then request an H-2B classification by petitioning the U.S. Citizenship and Immigration (USCIS). They must then apply with the U.S. Department of Labor (DOL) for a temporary labor certification.
If the entire hiring process sounds complicated don’t despair because employers can work with an H-2B recruiting company like AW Labor Solutions to effortlessly conduct all of the necessary hiring steps.
The H-2B guest worker program is a nonimmigrant, viable solution for businesses to overcome labor shortages and hire temporary workers to meet their needs. The employer cannot continue to operate even with a local labor shortage so turns to the H-2B visa program to fill the need.
Busy business owners who are concerned about the time and paperwork involved in the hiring process can turn to a skilled recruiting employment agency h2b visa specialist team like AW Labor Solutions to iron out the details and manage the complexities.
Landscaping and Gardening Worker with Scissors in His Hands
Qualifying for the H-2B Temporary Non-Agricultural Program
An employer must establish the following criteria to use the H-2B visa program to meet their labor needs:
  • Establish that there is a shortage of U.S. workers willing, qualified, available, or able to fill the position.
  • Prove that employing an H-2B worker will not impact the working conditions or wages of U.S. workers who are employed in similar positions.
  • Show that the position is temporary (no longer than 10 months)
The position must be as follows:
  • One-Time Occurrence: Display that an employment position needs a temporary worker and that previously employed workers cannot perform the service or labor.
  • Seasonal Need: Must show that the position is traditionally tied to a season, event, or pattern. It can also have a recurring nature.
  • Peak Load Need: Show that there is a temporary need to fill the position due to seasonal or short-term demand increases that cannot be met by the employer’s permanent staff.
  • Intermittent Need: Display an intermittent need for temporary workers to perform the job for an abbreviated period that has not been needed previously and has not been performed by permanent or full-time workers.
Definitions of H-2B Visa Phrases

Here are a few commonly asked questions about H-2B Phrases

What is meant by a “one-time occurrence”?
This is a confusing phrase for many employers. A one-time occurrence means that the employer must show that they have not previously ever employed workers to carry out the services or labor they need performed by an H-2B visa holder. Also, they will only need the H-2 foreign worker for the one-time job position and not in the future (it is not an ongoing position but only short term).
In a nutshell, the term ‘one-time occurrence’ means that the employment is not permanent but only a temporary event.
The employer should have never used a foreign H-2B laborer in the past to perform the job and they have no intention of using a worker in the future. The foreign worker will be used for a one-time temporary position.
What is meant by an “intermittent need”?
This phrase means that the employer does not typically employ for the position, whether full time or permanent. It is only an intermittent need.
What is “peak load need”?
Peak load need refers to the need for an H-2B worker to help support the employer’s permanent workforce due to peak demand. The H-2B worker will not become a permanent worker but only work during the peak time period.
What is “seasonal need”?
The employer is allowed to establish that the position is recurring due to a seasonal need. The season of the year dictates the demand or the job’s occurrence. The time of the year cannot be set due to permanent workers being on vacation. Instead, it must be a predictable time of the year such as a spring or summer job that correlates with an agricultural harvest for food processors.
H-2B Cap Considerations
The H2-B visa program has a numerical limit on the number of visas issued each fiscal year. The cap has been set at 66,000 per fiscal year. The first 33,000 workers can begin employment during the first half of the fiscal year from October 1 to March 31.
The second 33,000 workers can start work during the second half of the fiscal year from April 1 to September 30. If the limits are not reached during the first portion of the fiscal year, then they can be used by employers during the second. Unused visas cannot be carried over into the next year.
When the H-2B cap is reached, the USCIS will only accept an H-2B petition for workers who are exempt from the cap.
In 2021, for the first time in history, the Department of Labor and the Department of Homeland Security issued a temporary final rule increase on the H-2B cap to 22,000 visas for the fiscal year of 2021.
The increasing need for H-2B workers is not slowing down, especially in the construction field. There is a push for legislation which could remove the cap or increase it for the H-2B visa program. The H-2B visa may be redrafted to resemble the H-2A visa which has no yearly cap cutoff.
With the changing visa landscape, employers may want to seek out the assistance of a skilled foreign worker agency to navigate the applications process.
When an employer needs workers, they don’t want to have to deal with holdups, problems, or avoidable errors which can occur with the excessive required paperwork. An experienced foreign worker employment agency can manage all aspects of application and requirements.
H-2B Employer Requirements
As with any government process, there are requirements that an employer must successfully meet to utilize the H-2B guest worker program to meet their employment needs.
  • Display proof that there is a genuine shortage of U.S. workers in the area willing to perform the job.
  • Reassure that the position being hired for is seasonal, temporary or a one time (only work during peak times of the year).
  • Show a real and desperate need for laborers.
H-2B Application Process
A skilled H-2B recruitment agency like AW Labor Solutions can help an employer every step of the way through the complex H-2B application process.

Step 1: A temporary certification application must be submitted to the DOL prior to asking the USCIS for an H-2B classification.

Step 2: An employer must fill out and submit I-129 to USCIS. Any application processed using the DOL’s FLAG system must include a single copy of the H-2B temporary labor certification approval, often called the ‘final determination’. If the original temporary labor certification has already been provided previously then the petitioner can provide an explanation along with the receipt number of the petition that accompanied the original when it was filed.

Step 3: A prospective foreign worker must apply for the H-2B visa for admission into the United States.

The worker must:
  • Apply with the U.S. Department of State (DOS) located at either the Consulate or the U.S. Embassy. They can then seek entry with the U.S. Customs and Border Protection (CBP) or at a U.S. port of entry.
  • Another Option is to apply for admission into the United States with an H-2B classification at a US port of entry or CBP if an actual H-2B visa is not required.
Filing Options for the H-2B Visa
Employers have filing options when it comes to submitting an H-2B application. They can file electronically or via mail. They can choose only a single method of submission. Any duplicate applications will be rejected.
Worker Packaging Orders at Food Delivery
Families of an H-2B Worker
Families are allowed to accompany H-2B workers. The worker’s spouse and unmarried children who are under the age of 21 are allowed to accompany the worker with an H-4 nonimmigrant classification. While residing in the U.S. with the H-2B worker, the spouse or children with an H-4 status are not allowed to work. The children can go to school.
Period of Stay for the H-2B Worker
The USCIS will grant a period of time outlined on the temporary labor certification. The classification can be extended for certain qualified employment, but only increments of one year at a time. Each time a valid temporary labor certification must be issued that covers the time period needed and accompanies the request for extension. For any H-2B classification, the maximum period to stay is three years.
If a worker has an H-2B visa for a total of three years, then they are required to depart and stay in their home country for a period of three month before again seeking readmission using an H-2B nonimmigrant visa. One thing to note is that any time spent with either an H or L classification will still count towards the H-2B visa time.
Application Processing
Upon submission, the Chicago NPC will review the application to ensure that there are no errors which could cause roadblocks in the processing. They will also check to make sure that the employer is within compliance to receive certification.
The Chicago NPC is in charge of rendering a final determination on whether or not to deny, certify or issue a Request for Further Information (RFI) before giving a Final Determination on the application.
After evaluation, if the Chicago NPC determines that the employer has met the necessary requirement and fails certain criteria for complete certification then they will give the employer the opportunity to take care of the issues with the application. They will issue a notification that will outline the steps the employer needs to take to meet the required criteria for certification.
The Chicago NPC will issue a final determination.
The H-2B processing time usually takes from 60 to 120 days. When an H-2B visa petition is submitted before January 1st then the H-2B worker can usually start work by June.
Worker finishing wooden products at the manufacturing
Employer Requirements After Issue of H-2B
Once an employer gains approval for H-2B workers they still have an ongoing responsibility. They must contact the USCIS within two days if any of the following should occur:
  • Does not report to work within five days of the stated start date
  • Quits or leaves work within five days of their start date.
  • Leaves the job without providing a notice.
  • Fails to report to work for five consecutive workdays without obtaining permission from the employer.
  • Suffers termination before the job’s completion.
  • Completion of the job occurs early (more than 30 days before the expected completion date).
Remaining Compliant with the H-2B Visa
An employer is tasked with the responsibility of remaining compliant with the H-2B visa. If an employer fails to comply, then the cost is very high due to incurred fees.
Non-compliance fines are $6,000 per violation and can quickly be compounded depending on the number of violations. An employer can often face violation fees that top $100,000 due to the potential number of violations that are stacked one on top of the other.
Common violations include the following:
  • Failing to properly pay employees.
  • Not providing an accurate number of required employees.
  • Giving an incorrect job time period.
  • Refusing to hire U.S. workers who apply for the position.
  • Not providing transparency when trying to recruit U.S. workers – such as not advertising the job’s benefits.
  • Failing to pay prevailing wages.
  • Demanding that the H-2B worker pay for any portion of the visa fee or other costs.
  • Refusing to reimburse for hotel costs, transportation fees and other expenses when the amount lowers the employee’s earnings to below minimum wage.
H-2B Frequently Asked Questions
Let’s explore a few of the most common H-2B FAQ:
Are there foreign worker recruitment agencies for H2B Visa holders?
An employer must start the application process for the H-2B visa program. Recruitment agencies can help an employer apply, find, and hire foreign workers to meet their labor needs. The agency acts as an intermediary hiring agency working between employer and employees.
Contact AW Labor Solutions to learn more! We help employers fill their non-agricultural work positions such as seasonal construction, food packaging, landscaping, retail business, restaurant services, and forestry with skilled and unskilled workers.
How long does the H-2B process take?
The first step in the H-2B process starts with an employer advertising for U.S. workers to fit their employment needs. If they are unable to hire U.S. workers, then the employee will need to apply to the local state workforce agency to gain their temporary labor certificate. At this point, they will need to present required documents and pay all necessary fees.
Before filing an H-2B application, the employer should also take the time to send a prevailing wage request to the Department of Labor.
After gaining approval from the DOL, the employer can then apply with the USCIS. In addition, they will need to file a Form I-129 to obtain the H-2B visas.
From start to finish, the H-2B visa process might take four to six months. Ideally, any employer who is seeking H-2B foreign workers to fill their labor needs should start the process at least six months before the employment’s start date.
Where does a foreign worker receive their H-2B Visa?
Foreign workers must apply to obtain an H-2B visa after they gain approval from the USCIS. They will need to apply at the U.S. Department of State located at an embassy or consulate to gain entry permission. With the H-2B classification, they can apply for admission at any U.S. port of entry.
Does the H-2B visa come with any privileges?
H-2B visa holders have the following privileges:
  • Allowed to undertake temporary work in the U.S.
  • Can enjoy employee benefits if the employer offers them.
  • May travel into the U.S. to work.
  • Allowed to bring spouses and underage dependents into the U.S.
  • May accept a change of job if offered.
Are there any limitations for the H-2B visa?
The limitations for the H-2B visa are as follows:
  • Employers’ needs must be temporary.
  • Duration of employment cannot exceed twelve months.
  • The authorized time is counted even if the visa holder is not in the United States.
  • Dependents or spouses of the H-2B worker cannot work while in the United States.
  • The employer is required to establish and legally meet all requirements.
What are the legal requirements that the H-2B employer must meet?
The employer must meet the following legal requirements:
  • Establish that the job is truly only temporary.
  • Obtain all proper certification.
  • Employer or an authorized agent is required to file the application for the H-2B foreign visa worker program.
What are the legal requirements for the H-2B visa holder?
All H-2B visa holders must meet the following legal requirements:
  • Possess an offer of employment for a position that is non-agricultural and temporary/seasonal.
  • Show proof that they intend to return to their country of origin when their H-2B visa expires.
How long is the H-2B visa holder allowed to remain in the United States?
H-2B visa holders are allowed to remain in the United States or the time period outlined on their Form ETA-750A. The time period must be 12 months or less. Extensions are obtainable for a total of three years before the visa holder is required to return to their country of origin.
Is there any way for the stay of an H-2B visa holder to be extended beyond 12 months?
Extraordinary circumstances must exist for an employer to retain their temporary H-2B visa holder’s to stay longer than the stated duration of 12 months. The employer must apply for an extension. Every extension request is individually examined and weighed.
Can an H-2B visa holder extend their stay?
A visa holder is allowed to apply for what is referred to as an Extension of Stay, but they must provide valid justification for the extension.
Can the status of an H-2B visa be changed?
An H-2B visa holder can change employers or jobs but they must have the status on their H-2B visa changed. The new employer is required to file a Form I-129, which is a Petition for Nonimmigrant Worker at the USCIS Regional Service Center.
Can an H-2B visa holder go to school in the U.S.?
Yes, an H-2B visa holder can participate in part time or recreational study. However, they cannot attend full time schooling or take any type of educational course that interferes with their job.
Can H-2B dependents come to the U.S.?
Yes, dependents who are unmarried and under the age of 21 can enter the U.S. with an H-4 visa and stay with the H-2B visa holder for the duration of the H-2B visa’s term. An H-2B visa holder’s spouse can also join them in the U.S. with an H-4 visa.
Can the dependents of an H-2B visa work in the U.S.?
Dependents of an H-2B visa who are in the country with an H-4 visa cannot work in the U.S. They are required to obtain a work visa.
Can the dependents of an H-3B visa attend school in the U.S.?
Yes, an H-4 depends on can attend school in the U.S. They must apply for an F-1 student visa to attend school.
Does the H-2B visa have any travel restrictions?
Any holder of an H-2B visa is allowed to travel throughout the U.S. and back to their country of origin without any restrictions.
What is the average processing time for an H-2B visa?
Employers seeking H-2B foreign workers should start the process at least 60 to 120 days before the workers are needed for the job. Please remember, that the H-2B visa process is lengthy and complicated so an employer should always provide sufficient time for the process to take place and take into consideration any delays or corrections needed on the applications. Working with a skilled H-2B recruitment agency can streamline the process.
Will the employer receive notification of the progress of the H-2B application?
The employer will receive written notification issued by the Certifying Officer that the application has been successfully accepted for consideration.
Will the employer be notified if the H-2B visa application is denied?
The prospective employer will receive notification if there is a problem with the application. They will typically issue a Request for Information when the application is unacceptable or if there are any necessary changes needed on the application. The employer will usually have seven days to make any needed changes and resubmit. If the visa is denied, then the employer can apply an appeal.
Can an employer submit an amended application?
An employer is allowed to re-submit an amended application within five days after receiving the notice of non-acceptance.
What circumstances result in an H-2B visa application denial?
H-2B visa applications are often denied for the following reasons:
  • Failure to meet period requirements
  • Available workers exist in the United States which are willing and able to undertake the work.
  • Compliance problems with the recruitment requirements.
  • Benefits, wages, or working conditions for U.S. workers are being compromised.
  • Employer previously broke the terms and conditions of an H-2B certification.
Is an H-2B visa holder eligible for a green card?
An H-2B visa holder can apply for a Green Card.
Why Employers Choose to Use the H-2B Visa Program
There are a variety of reasons why employers are turning to H-2B foreign workers to fill their labor needs.
Reliable Labor
The H-2B program provides a source of dependable, capable, and legal labor to meet the temporary employment needs of employers. Most H-2B foreign workers opt to return to the same employer year after year which provides a steadfast workforce for the employer’s seasonal needs.
Collaborating with a foreign worker employment agency such as AW Labor Solutions, helps employers connect with thousands of workers each year plus the recruitment team provides the skills needed to navigate the complex application process.
Source of Legal Labor
In recent years, employers face many obstacles when it comes to fulfilling their labor needs. There seems to be an abundance of US jobs but too few US workers to fill them. Luckily, the H-2B foreign worker program is a way to meet the needs of employers with a source of legal labor that is dependable.
Helps Grow Businesses
With a dependable workforce, a business can grow. AW Labor Solutions helps clients grow their businesses using the H-2B foreign worker program. A stable workforce provides the business owner with the confidence needed to reliably expand their operations and better meet the increased demands of the growing marketplace.
Conclusion
At AW Labor Solutions actively partners with businesses to offer the labor and assistance they need to navigate the H-2B visa program. Please contact us to learn more.

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