How H-2B Visas Can Help Solve the Construction Labor Shortage

H-2b visa for construction labor shortage
Construction is at an all-time high nationwide, but the industry is facing a severe labor shortage, sending many employers scrambling to find solutions such as using foeign workers via the H-2B Visa.
The construction industry’s labor shortage isn’t new, nor is it news — at least, not to employers who have struggled for years to hire the labor they need despite record industry employment.

What is the H-2B visa program?

All employers considering collaborating with a foreign worker agency should familiarize themselves with the following facts about the H-2B visa and foreign worker recruitment process to determine the suitability of the program.
1. H-2B is a Nonimmigrant Visa

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.

With H-2B visa jobs, non-immigrant guest workers are permitted to work in the U.S. in temporary, non-agricultural jobs. This program is not intended to provide a pathway to permanent residence or citizenship, and it does not have specific educational, occupational, or skill requirements.
An analysis of the Department of Homeland Security’s (DHS) fiscal year 2018 claims data showed the construction industry was the fifth-highest that year in terms of industries with H-2B hires, with 5,756 approved H-2B workers. This is consistent with long-term data, too. In 2014, construction was the sixth-highest, with more than 2,407 industry employers receiving certifications for workers.

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.

H-2b visa for construction labor shortage

Who qualifies for H-2B visas and under what conditions?

Employers who want to supplement their labor force with foreign workers should always carefully consider whether the work they need done falls under the eligibility requirements of the H-2B program. So how do you know if you can even seek labor certification?

In order to be eligible for H-2B labor certification, employers must:

  • Have valid Federal Employer Identification Number (FEIN)
  • Have a physical place of business in the United States, and
  • Have a means by which you can be contacted for employment

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.

  • Are the job duties temporary or seasonal in nature? For H-2B purposes, this means the job is either an intermittent or a one-time occurrence, seasonal, or peak-load need.
  • Is the job opportunity for full-time employment? The job opportunity must be a bona fide, full-time position of at least 35 hours per week.
  • Is the job opportunity non-agricultural? The expectations and duties of the job must be consistent with the normal and accepted qualifications and requirements of the position, and it cannot be in the agricultural sector — that would be the H-2A program.

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.

You can find the current list of eligible countries published in the Federal Register (FR) released by the Department of Homeland Security (DHS).  The designation of each of the countries is only eligible for one year and is often changed every twelve months

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.

H-2b visa for construction labor shortage

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:

Employers who decide to offer housing and utilities can deduct a certain amount of the fees from the worker’s pay.
  • Fraud
  • Overstaying stay
  • Noncompliance with the H-2A or H-2B visa terms.
  • Human trafficking.

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.

H-2b visa for construction labor shortage

Construction worker responsibilities for an H-2B visa holder include:

  • Preparation of all materials, tools, and the construction site
  • Loading/unloading materials
  • Removal of debris and materials
  • Assisting all trades such as painters, electricians, and contractors.
  • Transport and operation of machinery and equipment
  • Assembly of structures, scaffolding, and barricades

What are the Steps of the Application Process?

Construction firms seeking to hire H-2B visa workers will need to prove that the open position for the job is one-time or seasonal. Basically, the H-2B work will fill a temporary, short-term need. The work is not available year-round.

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.

H-2b visa for construction labor shortage

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. 

  • Newspaper advertisements
  • Employment agency notices
  • State employment agency notices
  • Jobsite postings

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

Employers should begin the process about six months before the actual start date of the work. The application will need to make its way through several agencies and getting the right paperwork in at the right time is crucial when it comes to getting workers when you need them.
  1. Prevailing wage determination (PWD): The first step is submitting ETA Form 9141 to the DOL. This is where you will provide a statement explaining your need for the labor to be performed, and a detailed description of the job’s duties and location(s) of the work. This allows the DOL to decide what the required wage is for the job.
  2. State job order: About 90 days before the start of work, once the DOL sends the Final Determination Letter with the prevailing wage and you agree to pay the rate set in the PWD, you will need to submit the H-2B Job Posting Request Form to your state workforce agency.
  3. Labor certification application: The state workforce agency reviews and approves the job order and sends their Notice of Acceptance, and you can submit ETA Form 9142B and any necessary appendices to the Chicago National Processing Center.
  4.  Recruitment: Within 14 days of the Notice of Acceptance, you will need to also begin doing your part in recruiting U.S. workers while the state workforce agency does the same.
  5. Submit recruitment report: After you complete your required recruitment steps, you will need to submit documentation of your actions, including justification for every refusal of a U.S. worker and evidence that you contacted former workers. This will happen about 30 to 60 days before the work start date.
  6. Petition USCIS: You can now begin petitioning United States Citizenship and Immigration Services (USCIS) for non-immigrant workers with a copy of your labor certification and the Form I-129 petition. If the lottery system works in your favor, you will finish accepting referrals for U.S. workers 21 days before the start of work and then finalize and sign your recruitment report.
  7. H-2B worker recruitment: About two weeks before the start of work, you will begin recruiting H-2B workers using the recruiters listed on your labor certification, provide information to schedule visa interviews, and provide job order to the workers.
  8. Application for admission: After workers are selected and approved by USCIS, you will process the workers, file an online application with Customs and Border Patrol, pay the fees, and organize transit to the proper port of entry.
  9. Employ workers: As part of the employment requirements of H-2B workers, you must — along with paying a prevailing wage — provide Social Security numbers and adequate housing, benefits, and working conditions to your workers, all of which you will have documented in your application.

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.

Are there any caps on the number of H-2B workers?
Like many other visa programs, the H-2B guest worker program has limits on the number of people allowed to receive authorization to work in the U.S. The H-2B program has a cap of 66,000 workers, which is divided up equally in each half of a fiscal year, which means:
  • Up to 33,000 visas are available to workers who begin employment between October 1 and March 31
  • Another 33,000 are available to workers whose employment begins between April 1 and September 30, along with any “leftovers.”
H-2b visa for construction labor shortage

Chronic Labor Shortages and H-2B Visa Availability

Chronic labor shortages nationwide are not in dispute. The National Association of Home Builders (NAHB) pushed the Department of Homeland Security (DHS) and Congress to help meet the demands of the construction industry by expanding the number of H-2B visas allocated each year.

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:

  • 16,000 for returning H-2B workers.
  • 6,000 for workers from Honduras, Guatemala, and El Salvador

What are the odds of approval?

In order to encourage employers to petition for labor certification as early as possible, the Department of Labor updated their filing system so it would place applications for processing in the order they were received in the electronic filing system. However, on January 1, 2018, over 5,000 petitions were filed — for a total of 96,400 workers — just for spring and summer jobs, and the filing system crashed.
After that, the DOL decided to start using random selection to process applications from employers. USCIS also decided to start using a lottery process to process applications from foreign workers.

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:

  • No foreign employment history needed
  • A single labor certification application allows one construction company to bring in multiple workers.
  • U.S. employers need to only file a single visa petition for returning H-2B workers.
  • Premium processing available for rapid turnaround.
  • Potential for multiple visa renewals.
  • Spouses and children can accompany the H-2B visa holder.
  • Children of the H-2B worker can attend school in the U.S.
  • H-2B visa does provide pathways for citizenship – unlike other visa types.

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.

Construction companies that only need a few workers might feel like the H-2B visa gauntlet is simply too complicated and extensive to undertake. Some fail to see any significant economic advantage in hiring foreign workers over American workers. At this time, fewer construction companies are pursuing the H-2B work program than they did a decade ago, according to reports.
Not only do employers have to understand a complicated filing schedule and lottery system, there are 176 H-2B rules for workers and employers — not including additional requirements created in 2020 in response to the COVID-19 pandemic.

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.  

The Associated General Contractors of America (AGC) has reported the following construction labor shortage statistics:
  • 89% of construction companies are facing difficulties filling positions.
  • 88% of construction firms (nine out of ten) are struggling to cope with project delays
  • 86% of construction firms are unable to fill salaried positions.
  • 72% foresee shortages to remain the biggest challenge in the upcoming years for the construction industry.
  • 61% percent of project delays are a direct result of labor shortages

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:

  • 72% cannot find qualified laborers due to a lack of construction skills or the inability to pass a pre-employment drug test.
  • 58% believe that unemployment insurance supplements and expansions have caused a lack of American workers willing to take on difficult or labor-intensive construction jobs.

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.


Follow Us
Stay Up to Date!

At AW Labor Solutions we provide you with a legal seasonal workforce for all of your business needs.

We want to help your business grow because your success is also our success.