What is the H-2B visa program?
The United States offers many types of visas to foreign workers, but the construction industry only has one visa option to bring in either skilled or unskilled labor: the H-2B temporary non-agricultural workers’ visa.
Project leaders seeking management or supervisors that possess bachelor’s degrees or other professional proof have other visa options. However, to fill construction laborer needs, the H-2B visa remains the best (and only) choice.
The labor certification is the first step in the process of hiring workers under the H-2B program. Because this program is designed to fill a need identified by U.S. employers, the process is initiated by employers rather than the guest workers themselves.
Who qualifies for H-2B visas and under what conditions?
In order to be eligible for H-2B labor certification, employers must:
If you meet those qualifications as an employer, then you can consider whether the positions you need workers for may qualify by asking yourself a few frequent questions.
In order to hire H-2B workers, you must go through a lengthy application process to determine that there are not enough U.S. workers who are qualified and available to perform the work and that the employment of H-2B workers will not adversely affect the wages and working conditions of U.S. workers in similar positions.
While experienced construction industry employers already know when hiring is tough, the Department of Labor (DOL) will still need to certify that fact formally. If you believe that your hiring needs will pass muster with the DOL, then you are ready to begin your application.
H-2B Eligible Countries:
The H-2B visa is only available to nationals from countries that have been designated as eligible by the Secretary of Homeland Security to participate in the program.
As of Nov 2021, the H-2B visa program has been extended to nationals from Bosnia, Herzegovina, the Dominican Republic, Cyprus, Mauritius, Saint Lucia, and Haiti.
Starting January 18, 2022, citizens of Moldova are no longer eligible for the H-2A visa but still remain eligible for the H-2B visa.
Several factors impact the DHC decision to include countries in the visa program or remove them. Typically, everything hinges on the country’s long-term cooperation in taking back citizens who are subject to removal for the U.S.
H-2B visa holders have their visa status revoked and must return promptly to their country of origin for a variety of reason such as:
Currently, citizens from 86 countries are allowed to apply for an H-2B visa.
Common Construction Worker Jobs for an H-2B Visa Holder
Construction workers, often referred to as construction laborers, carry out a variety of job functions at construction sites. Their responsibilities include: on-site tasks such as loading/unloading materials, removing debris, building scaffolding, and assistance with heavy equipment.
Construction worker responsibilities for an H-2B visa holder include:
What are the Steps of the Application Process?
Employers use the H-2B visa because they have exhausted all other options. They were unable to find American workers able and willing to carry out the required job functions.
Typically, a construction firm must advertise for American workers first to fill their labor needs. They must carry out an extensive advertising campaign and make an effort to find American workers before admitting defeat and going with H-2B laborers.
A construction firm should make note of all tools used to find American workers to prove to the DOL that all avenues have been pursued and there simply are not sufficient U.S. workers to meet the demand.
If a construction company simply does not have the time or does not know the extra steps needed then they should contact a foreign worker employment agency, such as AW Labor Solutions, for assistance.
Companies must always have documentation verifying their workforce needs, such as 50 framers or 50 pipefitters, they should never request more laborers than they actually need to complete the task efficiently and within the deadline requirements.
The DOL also likes to see a construction company with a documented history of fair hiring practices, sales contacts, and staff along with proof of their justified labor needs.
The construction company must also reach out to the DOL and request a prevailing wage rate from the DOL and ensure that they plan to pay all incoming workers fairly. The wage is only good for six months and then the employer must again submit an application before the set wage expires.
Undoubtedly, the excessive paperwork needed during the H-2B hiring process means that construction employers should start filing paperwork as quickly as possible. An H-2B recruiting company can help iron out the details to streamline the process.
Steps to Obtain H-2B Visa Workers
The Wage Hour Division has additional requirements intended to protect both the rights of workers and the program itself that you are responsible for during and after employment, including preserving all employment records for three years.
Chronic Labor Shortages and H-2B Visa Availability
The NAHB has also requested exemptions on returning H-2B workers from the program’s annual statutory cap. Prior to 2016, workers who came into the country on an H-2B visa were exempt from the count, but Congress let the exemption expire. Due to the expiration, the pool of available visas has been quickly exhausted each year and caused many construction firms who previously relied on H-2B labor to fail, scale back operations, or seek other solutions.
On May 21, 2021, the DOL and the DHS expanded the H-2B visa program by allowing an additional 22,000 H-2B guest worker visas for companies facing ‘irreparable harm due to a lack of workers.
The additional visas provided were as follows:
What are the odds of approval?
Even with so many available visas, labor shortages in a number of industries mean that it’s a competitive process, and any delays can cause serious problems for employers who need the labor force.
How Long Can an H-2B Worker be Employed?
The H-2B worker visa is a non-immigrant, temporary visa. It allows a foreign worker to work in the U.S. for up to nine months, but the worker does have the option of extending the period for up to three years. In some cases, the visa is initially certified for three years and labeled as a ‘one time occurrence.’
Can the Status of the H-2B Visa be Changed to Green Card?
The H-2B visa is a non-immigrant program. At the end of employment, a worker must return to their home country. The worker cannot automatically change from the H2B visa to a green card. However, it is possible to seek a non-immigrant permit.
To be potentially eligible for a green card, the visa holder must return to their home country and submit a Form I-129. If the visa holder wishes to be eligible for a green card, then they’ll need to find a new employer and file a Form I-129.
Benefits of the H-2B Visa
With the H-2B visa program, an employer can lawfully bring in temporary workers. It can clearly help alleviate the construction laborer shortage.
Benefits include:
Should Construction Firms Consider Using the H-2B Visa to Meet Labor Needs?
The DOL has set forth rather rigorous requirements for construction companies seeking to use the H-2B visa. The construction company must show that a shortage of U.S. workers exists to fill the positions.
When a construction company tries to conduct the necessary paperwork, the lead time on extensive paperwork is often substantial compared to other industries such as resorts and hotels seeking employees.
At this time, the labor shortage in construction continues to balloon causing nationwide delays and costing firms a substantial amount of money in downtime.
At this time, the labor shortage in construction continues to balloon causing nationwide delays and costing firms a substantial amount of money in downtime.
Construction companies who are dragging their feet in implementing the H-2B visa program to fill their labor shortage due to their perceived notion of the process being a paperwork headache are missing the boat and going to face ongoing hardships.
Skilled construction labor shortage numbers will grow along with the need for unskilled laborers as the demand for construction exceeds the capacity of available American workers.
Why Can’t Construction Firms Find American Workers to Fill Positions?
AGC lists two of the main reasons that construction firms struggle to find American workers:
H2B visa recruitment agencies help construction employers find laborers when their local U.S. workforce is insufficient. A skilled foreign worker agency understands the intricacies involved in the H-2B process and can ensure things run smoothly.
Staying on top of the foreign visa program process is a lot to put on the already busy plate of a booming construction firm. An H2B recruitment agency manages everything from start to finish. For more information about how partnering with a strategic legal advisor can help you get the workforce you need, contact AW Labor Solutions today.
