Employer Requirements
In order to use the H-2B visa program, an employer must meet the following requirements:
Guest Worker Requirements
The supplemental 40,000 visas in 2022 have been made available to businesses who are experiencing damage due to a shortage of workers. The struggling businesses can utilize the H-2B visa program to fill their labor shortage. The increase is only for 2022 and may or may not be available in the future.
The DOL’s PWD is the H-2B minimum wage set for employers. Many employers halt the H-2B visa process when they discover that the H-2B minimum wage 2021 and H-2B minimum wage 2022 continue to be considerably higher than the federal minimum wage. In every state, the H-2B wages 2022 are higher than the state’s minimum wage by about 60 percent.
Determining Prevailing Wage Rates
The DOL will determine prevailing wage rates based on either:
The goal is for the DOL to match the location and the employer’s job duties and locations, to the occupational employment statistics (OES) wage.
The PWD proves challenging for employers for a variety of reasons. They must pinpoint all job duties and worksites over five months ahead of time. The process means that workers must continue working at the same jobsite within the same job category. For certain employers this is an arduous task, for example, a construction laborer might be in charge of operating a cement mixer but if he stops operation of that machine and goes to smooth concrete then he is classified as a ‘cement mason’ which commands higher wages.
An employer can obtain numerous PWDs so workers can perform multiple job duties at various wages, but the process is difficult because each hour is calculated at a different rate and jobs must be kept separate. Individual workers have a challenging time switching between categories as needed. In addition, the DOL refuses to certify any job that spans multiple commuting areas unless it is in the forestry or carnival job classifications. PWD takes constant monitoring to ensure that employers do not violate the rules of the H-2B visa by having a worker travel outside the area or perform different job tasks.
Some employers require that an employee meet a productivity standard. If so, then the standard must be outlined in the job order and must be normal and common for U.S. workers performing the same occupation as well. Also, using productivity standards cannot cause the H-2B worker to be paid less than the outlined hourly wage.
Employers must follow all federal wage statutes and pay overtime professions as set forth in the Fair Labor Standards Act just as they would with a U.S. worker. During each payday, the employer must make all the normal deductions that are required by law. On the job order, it will state the deductions not required. Any deductions that are not disclosed are not allowed.
An H-2B employer must be paid at minimum every two weeks or according to the outlined prevailing practice in the region (whichever is the most frequent). Each job order must clearly state the frequency of the paydays and all wages must be paid when due.
An H-2B employer is not required to provide housing to H-2B workers. There are no H-2B housing regulations, unlike with other visa types. The H-2B worker must pay for their own housing costs and any related expenses. Typically, the H-2B workers simply lack the resources needed to secure housing so employers are encouraged to seek basic housing arrangements with amenities to help the workers during their stay but there are no H-2B housing requirements.
Because of this, the workers are free to secure their own housing. Undoubtedly, H-2B housing can often prove problematic for both worker and employer if there are no affordable housing options in the area.
The H-2B employer must pay for inbound and outbound transportation along with meals and lodging until the guest worker reaches their place of employment. This requirement does not matter if the H-2B worker is traveling from their home country or if they are already in the United States. This requirement also covers any U.S. workers who will be traveling from afar to the job site.
The employer must outline their plans to provide inbound transportation aligned with subsistence costs (lodging and meals) in detail on the job order. The options are to advance all transportation and subsistence costs to workers prior to traveling to the worksite by paying the guest worker directly or by reimbursing the expenses during the first work pay period.
The Fair Labors Standards Act (FLSA) requires that employers reimburse the workers for any incurred costs for inbound transportation from their home country to the worksite if the costs would force the workers’ wages below the federal minimum wage for the first week of pay.
The employer can pay their outbound travel obligation by giving the H-2B employee travel reimbursement, making arrangements, or paying the sum directly or by providing reimbursement to the workers during the worker’s last workweek employment.
In addition to paying all inbound and outbound transportation an employer must provide the advance funds for the H-2B visa holder’s border crossing, visa, and visa-related expenses. The employer must pay the visa holder either directly or reimburse the first payday.
An H-2B employer must pay, reimburse, or provide a guest worker the reasonable cost of not only transportation, but also meals for the time it takes the guest worker to reach their place of employment from their home country. They must also pay for meals during their return trip home if they complete over 50% of the job period or are dismissed early.
In the job offer, it must clearly state the amount that the guest worker will receive for a daily stipend when traveling.
The amount ranges from $14 per day to $59 per day if documentation is provided.
In addition to a meal allowance and travel expenses, the employer must also pay for reasonable lodging when needed. The amount must be both reasonable and economical.
The Approval Process for the H-2B Visa
For an H-2B visa applicant, the approval process consists of three steps.
Temporary Labor Certification Application
An employer starts the temporary labor certification application process by sending off a registration request for an H-2B registration to the State Workforce Agency (SWA). The requisition should be sent more than 150 days before the start of the job.
The employer will request that the SWA determine prevailing wage, file a job order, and then file a form ETA 9142B Application for Temporary Employment Certification while including supporting documents with the DOL.
An employer must try to recruit U.S. workers to fill the job vacancy. If the recruiting efforts fail, then the employer will be granted a foreign labor certification. The labor certification clearly confirms that there are not sufficient US workers to fill the position and that the H-2B guest workers are needed. Also, employment of the H-2B visa holder will in no way negatively impact the employment, working conditions or wages of U.S. workers.
USCIS Approval
Once the labor certification is issued by DOL, the petitioner must also seek approval by contacting the USCIS and submitting Form I-129 application (USCIS Form I-129, Petition for a Nonimmigrant Worker) along with any additional supporting documents such as the following:
In some situations, the USCIS might request other documents.
A guest worker who wants to apply for an H-2B visa must complete Form DS-160 (Online Nonimmigrant Visa Application) and pay the filing fee. A confirmation page will be sent via email. The guest worker will need to schedule an interview for the visa at the consulate or embassy. They must provide following documents at the interview:
Documents not written in English should have a certified translation copy attached.
