Non-Agricultural Guest Workers: 2B or not 2B

Contributed by Amber L. Blasingame, Associate Attorney, Colorado Springs

As the US economy recovers and unemployment decreases, many employers are finding it more difficult to find available workers in various non-agricultural labor industries. On occasion when the US labor force is lacking, some employers turn to a more global pool of skilled labor. Unfortunately, the current immigration laws limit the type of labor for which foreign skilled and unskilled labor may be hired.

The Immigration and Nationality Act (INA) allows employers to hire skilled and unskilled laborers in H-2B status for non-agricultural work. However, among other requirements, employers must prove that the offered position is commonly seasonal, peakload, or a one-time need. These restrictions alone eliminate almost all year-round jobs. The regulations and rules applied by the US Departments of Labor and Homeland Security further restrict time periods. The US Department of Labor will generally not grant a seasonal or peakload position for more than 10 months, even though an employer, technically, could request up to 12 months at a time. For a one-time need, an employer could employ an H-2B worker for up to 3 years, but may only request labor certification for up to 12 months at a time.

Many employers in this situation may decide that the need is “one-time.” Even if the worker can only work for up to 12 months to fill the gap until an available US worker may be identified. However, a “one-time” need is strictly enforced and narrowly defined by the Departments. In general the category was created for true “one-off” situations, such as construction or demolition workers needed to clean up after a natural disaster. The offered position must have a definite end date. In limited cases, the government may extend H-2B status to a worker or workers hired to train US workers. However, the employer must establish an organized training plan, define the training period, and identify the US workers who will be hired and receive training at the hands of the foreign worker. In addition, the foreign trainer may not engage in “productive” work for the employer, only training of the US workers, and intend to depart the United States as soon as the training schedule has ended. In addition, an employer must convince not one, but three different departments of the United States that the position is a “one-time” need and will not jeopardize the integrity of the H-2B program. In other words, an employer could devote a lot of time and money to develop the training, hire the US workers, prepare and submit a labor certification, recruitment, gathering of documentation, payment of fees, and the application could be denied before the foreign workers are even selected.

The alternatives to a “guest worker” type status are minimal at present. A more entrepreneurial foreign national could consider an E-2 Treaty Investor status. However, an E-2 status may require more of a commitment of time, money, and effort on the part of the foreign national than an H-2B status. In very limited cases, if the employer has a foreign affiliated entity which has been in business for one year or more, the foreign national may qualify for an L-1 Intracompany Transferee visa. However, due to the political climate surrounding L-1 status, in many cases, unless you can prove that the skilled worker invented the product or methodology, it is often difficult, if not impossible, to come by an L-1 visa. If the foreign national is seeking to expand her work experience to better her prospects of employment in her home country, then she may be eligible as a J-1 Exchange Visitor trainee, depending on the type of work in which she seeks training. However, similar to the one-time need “trainer,” a “trainee” may also not engage in productive work and the period of stay could be limited to only one year in certain industries. The J-1 Trainee category is also highly regulated and attempts to extend or change status are prohibitive.

If none of the above seem appealing, then the congressional optional is always available, i.e., the employer speaks to their congressional representatives to promote a less restrictive guest worker program. The Senate passed S. 744, the Border Security, Economic Opportunity, and Immigration Modernization Act, in June 2013, which included a W-1 nonimmigrant visa for non-agricultural temporary workers. The Senate Bill would condition the number of visas available based on unemployment rates in a geographical area and labor shortages in the field of occupation. The House of Representatives has not proposed an equivalent for non-agricultural workers.

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