For those who are new to the H-2B filing process, the most difficult part is arguably recruitment. To even get to the recruitment process for H-2B visas, one must first master the temporary labor certification, prevailing wage determination and submit a proper job order. This article will delve into the job order submission process and then provide a detailed overview of the recruitment process for H-2B visas.
Dealing with the Job Order
When taking the steps to file for an H-2B visa, one must submit a job order to the area of intended employment at the same time the labor certification is submitted, and designate the SWA (State Workforce Agency) in connection with the H-2B application. An area of intended employment is defined as the area within normal commuting distance of the place of employment or worksite where the nonimmigrant will be employed. A hurdle may arise if the job opportunity is in more than one state within the same area of intended employment. In this case, one may submit the job order to any one of the State Workforce Agencies that have jurisdiction over the anticipated work site, but must be sure to identify the receiving SWA to the Department of Labor when submitting their labor certification.
In general, a job order must offer US workers the same benefits, wages, and working conditions offered to H-2B workers, and may not contain restrictions not imposed on nonimmigrants on H-2B. Specifically, a job order must contain the following information to be valid:
- Employer name and contact information
- Statement that the position is full-time and temporary
- Number of job openings
- Sufficient details of the position including duties, education requirements, work hours, and anticipated start and end date
- Area of employment
- Offered wage or range of wages (which must be higher of the prevailing wage or the federal, state or local minimum wage)
- If overtime and training will be available, the employer’s standard for computing wages in a standard work week
- Frequency of pay (every 2 weeks or according to prevailing practices in area of intended employment depending on what is more frequent)
- If fringe benefits are provided, state that all deductions required by law will be made by employer, specify any other deductions, state how the worker will be given or reimbursed for transportation and subsistence (meals and lodging costs incurred on employer’s behalf), state that the employer will pay worker’s cost of return transportation and daily subsistence from place of employment to place where worker departed to work for employer if the worker completed the certified period of employment or was dismissed before the end of employment
- If daily transportation to and from the worksite is provided, a statement that employer will provide all tools and supplies, a statement on the ¾ guarantee (more on that in a second) and
- Instructions to apply at the nearest SWA office of the state where ad is appearing and give the SWA contact information
While the requirements for a proper job order are extensive, it is important to ensure you have a proper understanding of them before filing. For example, the ¾ guarantee is a guarantee required for H-2B filings that employment must be offered for a total number of work hours equal to at least three-fourths of the workdays of each twelve week period if the period of employment is 120 days or more, or each six week period of employment if the period of employment is less than 120 days. If a potential employer fails to provide the ¾ guarantee or any other requirement, the employer will likely be reported on by the SWA they have filed with, as said SWA has six days to review and inform the Department of Labor if the job order does not comply with the applicable criteria.
If the job order is approved by the DOL, a Notice of Acceptance (NOA) will be issued. This will allow the SWA to place the job order in intrastate and interstate clearance by providing a copy of the job order to other states as directed by the CO who reviewed the job order. The job order must be kept active by SWA until the end of the recruitment period. Additionally, employers must file applications between 75 to 90 days before the work start date.
DOL and the Job Order
The DOL reviews both the temporary labor certification and the job order for compliance. It should provide either a NOA or NOD (Notice of Deficiency) within seven days. If the job order is incomplete an NOD will be issued. The NOD can be sent electronically and must be responded to within 10 business days. An employer can submit a modified application and job order or request review from BALCA. If an NOA is issued, then the DOL will issue guidance regarding the recruitment process, which will include notifying the SWA. A copy of the job order will be placed on the electronic job registry until recruitment ends. A CO can require modification of the job order any time before a final determination is made. Additionally, an employer may amend their job order by either: 1) increasing the number of employees sought by 20% or 50% if less than 10 positions requested or 2) adjusting the period of employment by 14 days as long as the overall time requested is less than nine months unless seeking a one-time occurrence. Amendments may be requested by email but must be done before certification or else they are not permitted.
The purpose of recruitment is to ensure that no qualified US worker is available, and if available, is only rejected for lawful job related reasons. Recruitment must offer the terms and conditions of employment, impose qualifications and requirements and must be on par with what is being offered to H-2B workers. So who qualifies as a US worker in this situation? The category is fairly broad and includes citizens, nationals, lawful permanent residents, those seeking or granted asylum and non-unauthorized aliens in respect to work in which the worker is engaged (individuals with employment authorization documents). Individuals who are undocumented are not considered US workers.
The typical deadline for starting recruitment is within 14 calendar days of when the NOA has been issued. Employers are required to accept referrals and applications of all US applicants until 21 days before the employer’s start date of need. While an employer is not required to hire an individual referred to them, they will likely face heightened scrutiny to confirm that the individual was not hired due to lawful job related reasons.
Advertisements must be run on two separate days, typically on Sundays, in a newspaper of general circulation serving the area of intended employment and appropriate to the occupation and the workers likely to apply. If no Sunday edition of the paper exists, which may occur in more rural settings, than advertisements must be run in regularly published daily edition with the widest circulation in the area of intended employment. At the discretion of the CO, one may be required to run the advertisement in a foreign language publication. Regardless, the ad must direct the applicant to the SWA and not the employer. As stated previously, an employer is not required to accept a referral but may receive higher scrutiny if they fail to do so.
The advertisement must contain much of the same information included in the job order. This includes:
- Employer name and contact information
- Geographic area of employment: specific enough to show travel requirements and where applicants will likely have to reside to perform services or labor
- Job description sufficient to appraise US worker of services or labor including:
- Minimum education and experience requirements
- Work hours and days and the anticipated start date and end date of job opportunity
- State temporary full time position with total number of job openings the employer intends to fill
- Whether overtime will be available if applicable with corresponding rates
- On-the-job training if applicable
- Offered wage or range of wages which are higher than highest of prevailing wage or applicable minimum wage
- Whether supplying board/lodging or other benefit will offered, and whether the employer will assist the workers in finding board/lodging
- Any deductions not required by law (ex. board lodging or other reasonable deductions)
- Statement that transportation and subsistence from place where worker has come to work to place of employment and return will be provided
- Whether daily transportation provided if applicable
- Statement that tools supplies and equipment will be provided without charge if applicable
- Statement regarding the ¾ guarantee
Documentation of the ads, such as copies of newspaper pages including the date of publication and a full copy of the ad, must be maintained by the employer. If the ad is also posted in another language, an English translation must also be retained.
In some situations, an employer may be required to contact certain former employees. Former US workers laid off within 120 days before the date of need who were employed in the same occupation and place of employment during the previous year must receive notice of the terms of the job order and solicitation they return to the job. This is not applicable to those dismissed for cause or who abandoned their former position. Documentation of these contacts should be kept by the employer.
If no bargaining representative is being dealt with, the employer may post the job availability for at least 15 consecutive business days in at least two conspicuous locations at the place of anticipated employment or in some other manner that provides reasonable notification to all employees in the job classification and area in which the work is to be performed. An acceptable example of this would be electronic postings such as internal or external websites the employer maintains and sues for notices to employees.
As previously stated, the CO may require additional recruitment in the NOA. For example, they may require written notice to community based organizations. In this case, the employer should ensure they maintain documentation that the community based organizer was notified. Typically, additional recruitment is required if there is a higher likelihood that qualified US workers are available. This usually occurs in areas of substantial unemployment. If required by the CO additional recruitment can include website positing, contacting a community-based organizer or career center or advertising in another publication. The CO is required to consider the cost of additional recruitment and likelihood of producing qualified and available workers.
The employer should always ensure they are documenting and keeping records throughout the entire recruitment process. The employer must prepare, sign and date a recruitment report which must be supplied to the CO by the date provided on the NOA. As the employer must continue to accept referrals until 21 days before the date of need, they must continually update the report during that period. While the updated recruitment report does not need to be provided to DOL, it should be retained in case it must be made available in the event of a post-certification audit, Wage and Hour Division investigation, or request of the CO.
The report should include the name of each recruitment activity or source. It should also have the name and contact information of each US worker who applied or was referred to the job up until the date of the preparation of the report. It is very important that the report clearly state whether the job was offered and whether the individual accepted or declined it for all US worker applicants or referrals. It should also provide a lawful job related reason why each applicant or referral was not hired.
Additionally, the recruitment report should confirm that all applicable former US employees were contacted and how such contact was made. If a bargaining representative was involved, the report needs to include they were notified of openings, how they were notified, and whether their organization referred qualified US workers or was non-responsive. If no bargaining representative was involved, confirmation job postings were made should be included. If any additional recruitment requirements were required by the CO, such as the need to contact a community based organization, proper documentation should be included in the report to affirm compliance.
While the recruitment process may seem extensive and even daunting, the assistance of an experienced law firm can ensure an employer is able to properly navigate the waters. Any employer considering filing for H-2B visas in the near future should contact an immigration firm to ensure they maintain proper compliance with all aspects of the H-2B visa process.
By Justin Rivera
Justin is an associate attorney at Reddy and Neumann. He practices immigration law with an emphasis on H-1B visas.