How To Hire H-2B Workers

This Guide explains the basics of hiring H-2B workers. You will learn a little about each step in the process. 

     Planning

·      Identify your need. The H-2B Program is intended to help businesses meet their need for non-agricultural temporary or seasonal labor.

·      Describe your need. A need involves a need for duties to be performed in a specific location. Need = duties plus location. Also, figure out when you need the workers. The date you first need workers is your date of need.

·      Hire An H-2B AgentOnce you have identified your need and can state your need with some specificity, hire an H-2B agent. Hire a reputable agent. There are reports of fly-by-nighters who leave people in the lurch. 

     Phase #1 – Prevailing Wage

·      The prevailing wage is the wage you must pay H-2B workers or domestic workers doing the same job.

·      The first step is to apply for a prevailing wage determination. You have to do this about 5 months before your date of need.

·      You apply for a prevailing wage determination by filing a “Prevailing Wage Request” or PWR. Your H-2B agent handles this.

·      The Department of Labor sets the prevailing wage using a survey based on occupation and location. The prevailing wage is always higher than you expect. This is called a "Prevailing Wage Determination” or PWD.

     Phase #2 – DOL Application, Advertising, And Certification

·      The next step is to file an “Application for Temporary Labor Certification.” The lingo here is “application” or “9142.” These terms come from the document you and your H-2B agent submit to DOL

·      Once DOL “accepts” your application, you will then have to advertise the proposed H-2B job. This primarily involves newspaper advertising. Your H-2B agent will help you write the ads and some help placing them.

·      In addition, your State Workforce Agency will post the job on its job referral service.

·      After the advertising is complete, you will prepare and submit a "results of recruitment" report. The recruitment report, as its name suggests, lets DOL know whether you were able to find U.S. workers to meet your labor need.

·      If everything’s in order, DOL issues a “Certification” or “Cert.” The cert establishes that you have a labor shortage and that employing H-2B workers won’t hurt similarly employed U.S. workers.

     Phase #3 – Department of Homeland Security

·      It’s not over. Once DOL issues its certification, you have to apply to the Department of Homeland Security’s USCIS.

·      You and your H-2B agent will prepare a Form I-129 Petition. The lingo here is the “I-129” or simply the “petition.” The petition basically duplicates DOL’s application. Most H-2B agents will prepare the petition when they prepare the application.

·      USCIS has two processing options: premium and regular.  Premium processing ensures a rapid response for a base fee plus a substantial premium fee. Regular processing involves a standard base fee. Almost all petitions receive premium processing.

·      USCIS adjudicates your petition. If approved, USCIS will notify you and the U.S. consulate at which your workers will apply. If denied, USCIS will notify you. You will have a chance to appeal or re-submit a new petition.

     Phase #4 – U.S. Consular Processing

·      You’re not done yet. USCIS does not issue visas; only the State Department does. After approvals, you will make consular appointments; the workers will fill out forms; and appear for a consular interview. If all goes well, the consular officer will issue a visa.

·      The process can be complicated. Your H-2B agent can put you in touch with reputable people to help you and the workers who want to work for you deal with these procedures.

This Guide is an overview and intended only introduce you to the H-2B Program. It does not answer all the questions about your legal obligations as an H-2B employer or all the details about the application process. That is why it is important to get specialized help.