H-2B Visa

H-2B

The H-2B is a non-immigrant visa, allowing foreign workers to enter the USA, perform specific duties in non-agricultural sectors, with guaranteed wages and protections, for a limited period of time, and then return home to their families and communities. The temporary need must be either seasonal, peakload, intermittent or one-time.

Our agency is one of the most established and respected Foreign Labor Consultant and Facilitator Firms in existence, specializing in the H-2B visa process for complex itinerant seasonal businesses, as well as more traditional seasonal and peak load businesses in hospitality, landscaping, pet boarding/grooming, commercial construction and the horseracing industry. Bring us your labor problems and we will strive to find labor solutions that work!

We are a one-stop shop, assisting employers in navigating the difficult US Department of Labor (DOL), US Citizenship and Immigration Services (USCIS), and US Department of State (DOS) processes in obtaining a stable, legal, seasonal foreign workforce to augment their US workforce.

In order to help ensure the on-time arrival of H-2B workers, we can also connect you with experienced service providers abroad who can assist you and your foreign worker visa applicants with the complicated process of consular scheduling and processing, Department of State DS-160 completion, and transportation.

The H-2B program is complicated and we also provide access to compliance resources for employers.

We are very active with the H-2B stakeholder community, working with each segment of the community to try to convince the government to provide employers and workers with a reasonable and equitable regulatory framework.

As the 2020 H-2B season begins, the regulatory framework remains in chaos and the demand for H-2B visas continues to exceed the supply. We are operating under an “emergency” Interim Final Rule (IFR) and a Final Wage Rule that were issued in early 2015. The IFR and Final Wage Rule are both being challenged in ongoing litigation in federal court. There are rumors that the Trump Administration may even issue new H- 2B regulations. There are also several bills being considered in Congress that would make significant changes to H-2B program, including increasing the annual cap of 66,000 visas. All of this means that at this time we do not know for certain what the H- 2B program will look like a few months (or a few days) from now.

Members of our staff and consultants have been active on the frontline of foreign labor issues for both workers and employers since 1978. Over the years, we have scored several victories on all of the playing fields: Legislative, Regulatory and Judicial. But more work remains to be done. We know the importance of the program to employers, US workers and H-2B workers. We ask all of our clients and their US and foreign workforces to be active in efforts to improve and protect the H-2B program.

The H-2B Process Involves:

  1. filing forms and completing processes, including the prevailing wage process, for obtaining an approved DOL Temporary Labor Certification;
  2. filing forms and completing processes for obtaining an approved USCIS Petition for Nonimmigrant H-2B workers;
  3. filing forms and completing processes for obtaining approved DOS visas for workers; and,
  4. logistics (transportation, notification of workers, etc.) to ensure workers arrive at the worksite on time.

Clients can choose to use the services of JKJ Workforce Agency, Inc. for the DOL and USCIS process (#1 and #2 above), or for the DOS and logistics process through our consultants abroad (#3 and #4 above), or to improve coordination and efficiency, JKJ Workforce Agency, Inc. and our consultants abroad will provide services to help you navigate the entire process – DOL, USCIS, DOS, and logistics.

It should be noted that many of the industries that we work with are covered by “special provisions” of the H-2B program. The H-2B program regulatory framework and interpretations can change, often on a weekly or sometimes daily basis, so by working with JKJ Workforce Agency, Inc. you will be assured of being with the agency that has a history of success and continues to be ahead of the pack as an innovator and trail blazer for the H-2B community.

Currently, the H-2B Application process can take more than 6 months to complete and the process is broken up into several steps. Each step is dependent upon the successful completion of the prior step. There are a limited number of H-2B visas available each year and last year not every employer that wanted to hire H-2B workers was able to do so. Timing is critical, so we urge you to return this contract IMMEDIATELY.

PLEASE NOTE THAT PROCESSES AND FEES DETAILED IN THIS DOCUMENT ARE SUBJECT TO CHANGE WITHOUT NOTICE, AS BOTH THE US GOVERNMENT AND FOREIGN GOVERNMENTS ADJUST FEES, POLICIES AND PROCEDURES ON A CONTINUING BASIS.

IV. APPLICATION PROCESS AND FEES FOR DOL AND USCIS

JKJ Workforce Agency, Inc., will assist clients in filing applications and navigating the process for the DOL Temporary Labor Certification and USCIS H-2B Petition for Nonimmigrant Workers.

If you would like to retain us to provide these services for the 2020 season, please complete and return the attached “Professional Consulting Services Agreement”.

3. 2020 FEE STRUCTURE FOR ONE LABOR CERTIFICATION AND PETITION

a) $3,500.00 fee to prepare one DOL labor certification and one USCIS petition, plus costs and expenses that must be paid by the employer, including:

  1. (1)  Newspaper advertising. This fee varies depending upon what the local newspaper charges, estimated to range from $300.00 to $3,000.00.
  2. (2)  Government filing fees to USCIS. These fees are currently:
    1. (a)  $610.00 filing fee for I-129 Petition for Non-Immigrant Worker.
    2. (b)  $1,225.00 filing fee for I-970 Petition for Premium Processing.
    3. (c)  DOL does not currently charge an application fee but this could change as DOL continues to ask Congress for authority to charge fees.
    4. (d)  Overnight courier service (FedEx). The short timeframe for filing requires overnight delivery and employers will be invoiced for these charges.
    5. (e)  Copying charges. Application filings can often include more than 100 pages and employers will be invoiced for the cost of copies.
  1. The total costs and fees are estimated at $5,500.00 to $8,000.00 per labor certification and petition filing, including expenses for advertising, courier services and copy expenses, regardless of the number of workers requested. A deposit of $5,500.00 for 2020 must be provided to JKJ Workforce Agency with this contract to cover estimated costs and fees. If actual costs are more or less, that will be reflected on your final bill.
  2. c)  Preparation of your 2020 filings can only begin if your account is current or a payment plan has been established and is being followed.

4. 2020 FEE STRUCTURE FOR MULTIPLE LABOR CERTIFICATIONS AND PETITIONS

  1. a)  If you require multiple labor certifications and multiple petitions due to multiple job categories, each labor certification and petition filing for a job category will incur fees, costs, expenses, and require a deposit as described above. You need to fill out a separate Professional Consulting Services Agreement for each job category and provide a corresponding deposit for each agreement.
  2. b)  If you require multiple labor certifications and petitions due to a split season (different start dates), where the same job category is utilized for different periods of need, each labor certification and petition filing for each period of need will incur fees, costs, expenses, and require a deposit as described above. A separate agreement is not required in this case, but your split season needs to be detailed on your agreement and you will be invoiced for the work performed and expenses related to each filing.
  3. c)  If you require a single labor certification, and multiple USCIS petitions due to, for example, workers originating from different countries or transferring from other employers, the additional USCIS petitions for the same job category will incur USCIS filing fees, costs, expenses as described above. A separate agreement is not required in this case, but you will be invoiced for the work performed and expenses related to each petition filing. The JKJ Workforce fee for providing the additional filing is $1,000.00 per additional petition.

H-2B CAP ISSUES

  1. a)  There is currently a limit of 66,000 H-2B visas that can be issued each fiscal year. A fiscal year for the Federal Government runs from October 1 to September 30 of the following year. This annual cap is currently split into 33,000 visas available for employment starting October 1 to March 30, and 33,000 visas available for employment starting April 1 to September 30.
  2. b)  When the economy is weak, typically the number of requested visas does not exceed 66,000 per year. When the economy is strong, the need for temporary seasonal foreign workers increases, causing a shortage of available visas.
  3. c)  Congress may or may not provide a “fix” to make more visas available when the cap is reached. Over the years, various methods of raising the cap have been utilized and those may or may not be available for fiscal year 2020.
  4. d)  If you are a current client and your company begins the H-2B application process, but is not able to obtain any H-2B workers because of the cap being reached, then:
    1. (1)  If you sign an agreement for the next fiscal year at the time we agree to stop any effort to process your current year labor certification and/or petition due to the cap being reached, you will be responsible for all costs associated with your current year filing (FedEx, Advertising, US Government Filing Fees) and we will reduce our fee for services from $3,500.00 to $500.00 (a reduction of $3,000.00) for the current filing season and “roll-over” any credits to the following filing season.
    2. (2)  If you do not sign an agreement for the next fiscal year at the time we agree to stop any effort to process your current year labor certification and/or petition due to the cap being reached, you will be responsible for all costs associated with your current year filing (FedEx, Advertising, US Government Filing Fees) and we will reduce our fee for services from $3,500.00 to $1,000.00 (a reduction of $2,500.00) for the current filing season and refund within 14 calendar days any credits remaining on your account.

V. APPLICATION PROCESS AND FEES FOR DOS (Department of State)

Most of our clients also utilize JKJ Workforce Agency’s consultants abroad to arrange for Consular Processing of workers through the U.S. Consulate and transportation logistics. If you need to recruit new workers, we will, at your request, arrange for consultants abroad to locate foreign workers for you.

If you would like to retain us to arrange these services to be provided by consultants abroad, please complete and return the attached “Consular Processing Services Agreement”.

  1. 2020 FEE STRUCTURE FOR WORKER PROCESSING THROUGH THE CONSULATE
    1. e)  $300.00 fee per worker to be processed.
    2. f)  If your account is up to date and invoices PRE-PAID AT LEAST 15 DAYS PRIOR TO THE CONSULAR APPOINTMENT, the fee is reduced to $275.00 per worker.
    3. g)  If your invoice is not paid within 90 days after consular processing, the fee will increase to $350 per worker.
    4. h)  Any accounts not paid in full within 180 days of invoicing are subject to an 18% annual (1.5% monthly) interest charge.
  2. FACILITATOR INCURRED COSTS Per DOL, the Employer is responsible for all transportation and subsistence costs of the employee while in transit to the job site.
    1. d)  Travel. Depending on the distance traveled and method of transportation, travel costs from the U.S. Consulate to the work site average about $300 per worker, including the border crossing fee of $6.
    2. e)  Subsistence. Daily subsistence costs are established by DOL each year through a Federal Register Notice. Currently, the daily subsistence rate payable to workers in transit is $13 per day without receipts of actual costs incurred, and a maximum of $51 per day with receipts.
    3. f)  Unless the Employer arranges otherwise, JKJWorkforce Agency and/or consultants abroad will coordinate and pay for worker transportation from the place of visa issuance (U.S. Consulate) to the worksite and will provide workers with the standard daily rate for subsistence as they travel. We will then invoice the Employer for these expenses for each worker.

VI. ADDITIONAL EMPLOYER RESPONSIBILITIES AND COSTS ASSOCIATED WTH THE H-2B PROGRAM.

The current regulatory framework also mandates additional costs and responsibilities for H-2B employers, and you must be aware of these additional costs and responsibilities and be prepared to demonstrate compliance during an audit.

7. Pay calculated weekly: DOL uses a single 7-day work week to compute wages due, however, workers may be paid either on a weekly or bi-weekly basis.

8. Deductions: Confirm with your tax professional, but it is our understanding that H-2B workers are to be taxed identically as U.S. Workers. H-2B workers should fill out a W-4 and may claim any status (except exempt) and claim dependents in accordance with IRS requirements. Additionally, it is our understanding that H-2B workers are NOT eligible for federal Earned Income Credits or Child Care Credits. The Employer must deduct and submit all deductions from the worker’s paycheck required by law and provide the worker with a copy of their paystub showing deductions. Contact our office if you need current copies of forms, including W-4 or I-9, and let us know if you have any basic questions about preparation of these forms.

9. Tools / Supplies: Work tools, supplies and equipment necessary to perform the job must be provided to workers at no extra cost. If uniforms are required, they must be provided at no extra cost.

10. Reimbursement of Costs: DOL states that all H-2B workers must be reimbursed for all the expenses they incur in coming to work for you. These expenses include the cost of the visa appointment, visa processing, border crossing, transportation, food and lodging in transit, and other related fees, including those mandated by the government (excluding passport fees). For efficiency, some of these costs are paid by JKJ Workforce (on behalf of the worker) and you will be billed for them, as mentioned above and as explained below in paragraph 5. But some of these costs are paid directly by the worker and must be reimbursed by you to the worker. Reimbursement of costs to the worker should be done the first workweek, but no later than the 50% point of the certification period. In addition to the worker costs that JKJ will bill to you, a worker will generally incur expenses of approximately $310.00 consisting of the visa appointment ($190), transportation from their hometown to the U.S. Consulate ($80) and subsistence ($40) during travel to the U.S. Consulate, but individual amounts may vary. Each individual worker should have a receipt / accounting of any transportation expenses and the visa appointment fees to present to the employer upon arrival at the work location. If the employer chooses to pre-pay these worker expenses, please contact JKJ Workforce Business Office at least 15 days prior to the visa appointment date to make arrangements to prepay, and JKJ Workforce will facilitate the prepayment to the worker. If a worker you designate is denied a visa or denied entry into the U.S., these prepaid expenses cannot be recovered. Thus, you may prefer to wait and reimburse once workers arrive in the U.S.

11. Travel & Subsistence: Once visas are issued, JKJ Workforce and consultants abroad will utilize subcontractors to provide transportation from Mexico to your place of business, considering convenience for the employer and worker, as well as cost, and the need for the workers to arrive on an expedited basis. The workers will NOT pay for their transportation from the U.S. Consulate to your worksite. JKJ Workforce will pay in advance for the cost of the transportation from the U.S. Consulate to the worksite, provide the workers with border crossing fees and will provide the workers with the current standard daily subsistence amount. JKJ Workforce will bill the employer for these transportation, border crossing fees and subsistence costs for the workers.

12. Housing Charges: The DOL’s current regulatory interpretation mandates that mobile H-2B employers (those whose employees do not return to the same location to sleep each night) provide housing to their H-2B employees (and US Workers hired as a result of the recruitment for H-2B employment) at no cost to the worker. The DOL’s official position is: If you have a need for a mobile workforce, the labor certification shall state that: “Housing and transportation for workers that is for the benefit of the employer will be provided without charge or deposit charge.” If your workers reside in fixed-site housing, you shall provide workers the contact information for local city, county, or state agency responsible for inspecting residential housing (if applicable).

13. Weekly vs. Hourly Wage: Many seasonal employers may be able to document that they qualify for the Fair Labor Standards Act section (13)(a)(3) exemption and are not required, among other things, to pay workers on an hourly basis. Please note that DOL has taken the position that this exemption does not apply to employers participating in the H-2B program. The position of the Department of Labor is that: The Employer must disclose, offer and pay the applicable prevailing wage rate for the occupation or the applicable Federal, state, or local minimum wage, whichever is highest, as specified in 20 C.F.R. § 655.20(a). Each labor certification shall state that: “Workers will be paid at least the offered wage rate for all hours worked, including hours in excess of 40 hours per week at the legally appropriate rate.”

For employers working on an itinerary with variable wage rates based on location we can provide tools (employee contract template, prepayment plan spreadsheets) to help you manage compliance, but these do not remove your responsibility to be compliant with the law and only are effective if the employer and worker utilize them correctly.

The Department of Labor also requires that:

a. Compliance with law. The employer shall comply with all applicable Federal, State and local employment-related laws and regulations, including health and safety laws, as specified in 20 C.F.R. § 655.20(z) (2016).

b. Transportation. The Employer’s transportation shall comply with all applicable Federal, State, and local laws and regulations and must provide, at a minimum, the same vehicle safety standards, driver licensure requirements, and vehicle insurance specified in 20 C.F.R. § 655.20(j)(1)(iii).

c. NLRA. The employer shall comply with the National Labor Relations Act, 29 U.S.C. §§ 151-169, and not “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to” any labor organization. The employer shall not recognize or deal with any labor organization as their employees’ exclusive collective-bargaining representative unless the labor organization represents an uncoerced majority of their employees.

d. Earnings Records. The employer shall make, keep, and provide to their H- 2B workers accurate records of H-2B workers’ earnings, as specified in 20 C.F.R. § 655.20(i).
e. Discrimination. The employer shall not intimidate, threaten, restrain, coerce, blacklist, discharge or in any manner discriminate against, and will not cause any person to intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate against any person who has taken the actions described in 20 C.F.R. § 655.20(n), any person who is owed back wages or who cooperates with federal agencies.

f. Prohibited Fees. The employer shall not charge any fees related to obtaining H- 2B labor certification or employment, including payment of the employer’s attorney or agent fees, and H-2B petition fees, recruitment costs, or any fees attributed to the labor certification as specified in 20 C.F.R. § 655.20(o).

g. H-2B training. The employer shall facilitate trainings of its managers on the requirements of the H-2B program.

h. The employers must post the attached DOL H-2B signage at their place of business where it can be seen by H-2B workers.

H-2B FAQs

What is an H-2B Visa?

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What do I need to do obtain an H-2B visa?

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How long is an H-2b visa valid for?

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Can I get an extension on an H-2B visa?

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What do I need to do if a worker does not show up for work or absconds?

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What needs to be detailed on an H-2B workers pay voucher?

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What is a returning worker?

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How do I read and understand an H-2B worker passport and/or visa?

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How do I fill out form I-9 for an H-2B worker?

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What do I do if an H-2B worker’s passport is lost, stolen or damaged?

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Can an H-2B worker get a Green Card?

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How long can an H-2B worker remain in the USA and work legally?

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Do I need to provide housing to H-2B workers?

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Can I give an H-2B worker a raise or bonus?

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How much do I need to pay an H-2B worker?

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How many H-2B visas are available each year?

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What is a cap exempt worker?

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Do I need to post signs at my place of business if I have H-2B workers?

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Do H-2B workers pay taxes?

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Is an H-2B worker taxed as a resident or nonresident?

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Should I have a contract with my H-2B worker?

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Should I have a bunkhouse contract with my H-2B worker?

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Can H-2B workers drive in the USA?

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Although JKJ Workforce Agency, Inc. seeks the advice of legal and accounting professionals regarding the H-2 program requirements, we are not a legal or accounting firm and we do not provide legal or accounting advice to our clients or to H-2 foreign workers. We encourage you to seek your own counsel regarding legal and accounting issues related to the H-2 program. Government regulations and policies concerning the H-2 program are complicated, subject to change, and interpretations may differ (even among government agencies). Any information we provide, whether oral or written, shall not create any warranty, representation or guarantee unless expressly stated.

Note that JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we utilize on your behalf, an employer, joint-employer, or co- employer of any H-2 worker processed or transported for you, the client-employer. Furthermore, JKJ Workforce Agency, Inc., is not, nor are any consultants or subcontractors that we engage to recruit workers for you (if applicable) an employer, joint-employer, or co-employer of any H-2 worker recruited for you, the client- employer. JKJ Workforce Agency, Inc. acts only as a consultant to you the employer in filing H-2B application paperwork with government agencies and in arranging for others to provide you recruiting, consular processing and/or travel logistics, where applicable.