H-2B Visa Program Requires 3 Steps (Depending on Worker’s Location)
- Obtain a Temporary Labor Certification from DOL.
- File a nonimmigrant visa petition with USCIS.
- [For Workers Abroad] Interview at the U.S. Consulate to obtain visa.
COVID-19 and the measures to contain its spread area affecting H-2B employers on several levels.
Employers Whose Workers Need Visas:
On March 18, 2020, the Department of State issued a statement suspending all routine immigrant and nonimmigrant visa services. An exception exists for H-2B applicants, however individual Consulates seems to have a different approach to visa issuance. For example, consulates in Mexico are issuing visas only to applicants who had an H-2B visa in the past 2 years. New applicants will require an in-person interview, which is not possible at the moment due to coronavirus restrictions. Also, several Consulates are denying H-2B visas because the officer believes that the services are no longer needed, due to stay-at-home orders. This should not be an obstacle for workers coming to perform services designated as essential by the state where work will be performed. I recommend checking your state’s list of essential services and send a printout with your visa applicants.
Employers Whose Workers are in the U.S. in Another Nonimmigrant Status or Working for Other H-2B Employers:
These employers must file a petition with USCIS and request a change or extension of status for their workers. H-2B workers cannot start working for the new employer unless the petition is approved. USCIS has suspended the Premium Processing Services, which guarantees a decision within 2 weeks. Without premium processing, the Vermont Service Center, for example, will take 2 to 4 months to approve H-2B visa petitions. If you are in this situation, we may be able to assist in expediting this process, so please contact our attorneys for legal help at 212-203-4795.
Employers Who Have Approved Visa Petitions and Workers in Place, but Do Not Have the Work Anymore:
Those employers face a difficult choice. An employer must guarantee work for ¾ of the hours for each 12-week period for the duration of the job order to all H-2B workers. That means employers must continue to pay its H-2B employees whether or not they work. If the employer chooses to terminate the contract, the ¾ guarantee will be excused because the coronavirus outbreak will be considered an act of God. However, even if they terminate the contact, the employer is liable until the effective date of termination and must pay for the workers’ return transportation.
Employers Who Have Certified Temporary Labor Certifications by DOL, but Were Not Able to File the Nonimmigrant Visa Petitions Before the 33,000 Visa Cap was Exhausted:
DHS and DOL have recognized that the demand for H-2B visas is much higher than the available cap. For fiscal years 2018 and 2019, in an effort to mitigate that demand, they authorized additional H-2B visa numbers. Early on in this filing cycle in February 2020, DHS announced that they are prepared to release additional numbers this year as well. Due to the pandemic, in early April, DHS announced that these plans are on hold.
If you need legal assistance, we are here to help. Call our lawyers at 212-203-4795.
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