Obtaining a visa for foreign-born workers
[This article was published in the Sonoma County
Gazette, July issue. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-by-christopher-kerosky-july-2018. Thanks to Liliana Gallelli, who cowrote this
article]
The federal government has long had a sort of
“don’t ask, don’t tell” policy toward much of our economy here – vineyards,
other agriculture, restaurants, hotels, among others. It goes something like this: we won’t ask if
your workers are legally here and please don’t tell us, or we’ll have to deport
them and your industry won’t have workers to hire.
Now, Sonoma Count is suffering from an ever-growing
shortage in labor. Contributing factors are low interest rates leading to
an increase in business development and a tight housing market, made worse by
the fires. Draconian immigration policies
have further worsened the situation.
Unknown to many employers, a guest-worker visa
program exists to supposedly help fill the gap in business personnel
needs. One such visa is the H2 visa--H2A for agricultural workers, and
H2B for temporary, nonagricultural jobs. But the bureaucracy an employer
is required to navigate and the costs of the process are too daunting for most.
The
H-2B temporary non-agricultural program allows U.S. employers to bring foreign
nonimmigrant workers to the United States to fill temporary nonagricultural
jobs.
This visa is a highly technical process that
involves multiple state and federal government agencies, including State
Workforce Agencies, the U.S. Department of Labor, the U.S. Department of
Homeland Security, and the U.S. Department of State.
While there are numerous reports that
businesses throughout the nation are being hurt by the inability to count on a
labor force, H2 visas are capped at only 66,000 per year (33,000 for
workers required during April 1 – September 30, and 33,000 for October 1 –
March 31). In fiscal year 2018, U.S.
Citizenship and Immigration Services (“ USCIS”), received approximately 2,700
H-2B petitions requesting approximately 47,000 workers, which is more than the
number of H-2B visas available. As a result, USCIS, conducted a lottery
February 28 to randomly select enough petitions to meet the cap.
Despite the Trump Administration’s focus on
“Buy American, Hire American”, U.S. businesses depend on immigrant
workers. After strong lobbying by companies ranging from tech to Maine
lobster, The
Secretary of Homeland Security, in consultation with the Secretary of Labor,
decided to increase the numerical limitation on H–2B nonimmigrant visas to
authorize the issuance of up to an additional 15,000 through the end of Fiscal Year
(FY) 2018.
Temporary worker visas usually are contingent
on the employer’s showing that it tried to locate and hire U.S. workers but was
unable to do so. This includes obtaining the requisite prevailing wage
determination from the US Department of Labor. Thus, before
requesting H-2B classification from the U.S. Citizenship and Immigration
Services (USCIS), the employer must apply for and receive a temporary labor
certification for H-2B workers from the U.S. Department of Labor (DOL).
In order to receive an H-2B temporary
labor certification, the employer must establish that:
§ There are not enough U.S. workers who are able, willing,
qualified, and available to do the temporary work.
§ The employment of H-2B workers will not adversely affect the wages
and working conditions of similarly employed U.S. workers.
§ Its need for the prospective worker's services or labor is
temporary. With the exception of a one-time occurrence need that could last up
to three (3) years, temporary need will not be approved for longer than 10
months. The employer's need is considered temporary if it is a(n):1) a one-time
occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent
need
Embarking on the H2 visa also requires an
economic commitment: Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from
their hometown to the job site prior to employment, and back again when the
employment period is over, housing etc. Best estimates on costs alone:
$8,000 to $10,000 per worker.
Oh, and by the way, no persons who are already
here without status are eligible. You
need to find appropriate workers in Mexico or some other country and they are
not getting a visa if they’ve been here illegally.
This is just another example of why our
immigration laws need reform.