Special Report:

Overcoming the Top Five Seasonal Worker Hurdles for Small and Medium Sized Business (and Big Businesses too!)

 By: Kenneth K. Schmitt, Attorney at Law

© 2014 Kenneth K. Schmitt and US Legal Solutions, LLC

 Navigating the H-2B (Non-Agricultural Seasonal Worker) Visa Process is a complicated and tortuous process that requires an employer to coordinate with the US Department of Labor (Office of Foreign Labor Certification), US Department of Homeland Security (United States Citizenship and Immigration Service) and US Department of State (US Consular Post in a foreign nation).  Of course these agencies do not communicate with each other and legal standards found in the applicable Immigration Statutes and regulations are frequently interpreted differently by each of the agencies.

This often results in a process that seems far removed from the day to day reality faced by the small or mid-sized employer and can place significant hurdles in the way of an employer obtaining the legal and reliable seasonal workers needed.  Even many larger businesses struggle year to year with managing this process.

US Legal Solutions has built a solid reputation as a “go to” law firm that can help the employer overcome these challenges primarily because we have been closely involved in negotiating many of these issues directly with the US Federal Government agencies that control this process. Ken Schmitt has worked on national committees of the American Immigration Lawyers Association that liaison directly with the Washington, D.C. management staff of the Office of Foreign Labor Certification and United States Citizenship and Immigration Services.

Some of these hurdles that we can help with include:

SHIFTING REGULATORY REQUIREMENTS or “We know what we said last year but this is THIS year!” It seems like each year the process changes and this is no truer than in the issue of prevailing wages. As you may know, in order to participate in the H-2B non-agricultural seasonal visa program, and employer must obtain a Prevailing Wage Determination from the Department of Labor and agree to pay this wage, at minimum, to its seasonal workers. However, as a result of a number of different lawsuits in different Federal courts across the country, the method of establishing a prevailing wage has changed nearly every year for the last six years.

In 2012, an employer was even required to advertise two possible wages for the position offered, depending on when its Prevailing Wage Determination was issued. In the past, employers had an option to use alternative wage databases including Davis Bacon and Contract Service Act wage data in place of the DOL’s wage data. Then these alternative data sets became mandatory if they were higher than the DOL’s wage data and now they are discretionary again. Private wage surveys submitted by the employer for DOL consideration were allowed, then not allowed, then allowed again. Currently, private wage surveys are allowed, but discouraged by DOL.

In March, DOL issued a Notice that it intended to publish a Notice of Proposed Rule Making, presumably this summer. Our best estimation is that the DOL will again revisit the requirement to use the highest of all the available government databases (DOL’s, Davis Bacon or Service Contract) and will again prohibit the use of private wage surveys except in very limited circumstances. Consequently, on just the issue of Prevailing Wages, the H-2B process is likely to continue shifting and challenge even the most experienced practitioners.

Our office works hard to advocate with the Washington, D.C. managerial and leadership staff in of the Department of Labor, Office of Foreign Labor Certifications (“OFLC”) and USCIS to maintain a coherent set of regulatory rules and to resist changes that will make the H-2B process more complex, unwieldy or unmanageable for small and medium sized businesses.

We also stay on top of all the recent changes and quickly analyze how these changes will impact your ability to enter into the H-2B process if you are a first time H-2B employer or to continue using the program if you are a seasoned H-2B employer. We are able to help you understand these changes and plan in advance to be able to navigate the process no matter what form it may take from season to season.

ESTABLISING SEASONALITY OF A JOB OPPORTUNITY or “What do you mean you don’t  mow lawn in the snow?!” Believe it or not, the Department of Labor, Office of Foreign Labor Certification (“OFLC”) actually has required proof that a landscaping employer’s job openings were seasonal jobs—in St. Louis, Missouri. And this demand has come from an OFLC worker in Chicago! (Did they look out the window when they were questioning this in January?)

In order to qualify for the H-2B program, a job opportunity must be either seasonal, a one-time need or a peak-load need. The most common use of the H-2B program is for jobs which are seasonal. In fact, recently released OFLC statistics reveal that, by far, the heaviest users of the H-2B program are landscapers.[1] However, the same report shows that the construction industry, including the roofing industry, has benefited largely from this program as well.

However, it is not unusual for adjudicators at OFLC (who process the Department of Labor step of the H-2B process) or with USCIS to question whether a job opportunity is actually seasonal in nature. When this happens a Request for Information (“RFI”) is generally issued requesting additional evidence that the position for which the employer wants to hire H-2B workers is actually seasonal in nature.

This requires the employer to submit records and documentation that demonstrate the seasonal fluctuation in need for these particular workers in a manner that is reasonably predictable year by year.

Our office has worked with employers to successfully demonstrate seasonality by marshaling all the available data our client may have from prior years, including payroll data, contracts for jobs completed or to be completed and even climatological data to prove the seasonal nature of the job opportunity.

More significantly, however, our office is experienced in knowing exactly how to organize this evidence into a presentation that is compelling to the adjudicating officer who will make the decision whether to allow an employer to hire H-2B workers.

The reality is that success of your business rides on the favorable determination by a faceless government worker in a processing center far removed from you and your work. We give you the best chance possible to convince that worker that your need fits the requirements of the H-2B program. This is a matter of getting that government employee to understand you and your business as a unique enterprise with clearly defined labor needs appropriate to the employment of H-2B workers.

JUSTIFYING LEGITIMATE JOB RELATED POSITION REQUIREMENTS or “Why do you care if that worker who might operate dangerous lawn care machinery has a drinking problem?”: OFLC requires that an employer conduct legitimate recruitment in the employer’s own domestic market for the positions being offered before filing their request to use H-2B foreign seasonal workers. The purpose of this recruitment effort is to demonstrate that there are no qualified US workers available in the employer’s market to hire for the available positions.

OFLC therefore closely watches for employers using unreasonable or unrelated job requirements in their domestic recruitment as a means to assure no domestic workers will respond.

Unfortunately, because the government adjudicators working for both OFLC and USCIS who review an employers’ recruitment efforts are not entrepreneurs themselves, they frequently are unable to distinguish between reasonable job related requirements for the specific industry and employer wishing to use H-2B foreign workers and unnecessary requirements intended to discourage domestic workers from applying.

Frequently, legitimate requirements that get questioned by OFLC and USCIS include necessary drug testing and criminal background screening.  If your company has a legitimate business related need for these requirements, they must be implemented in a way that does not violate other employment hiring and discrimination rules and that can be reasonable justified to the government.  This can be accomplished by organizing a presentation in your application materials that is compelling to the adjudicator who will decide if these requirements are legitimately business related.

WINNING THE RACE THOUGH THE MAZE IN TIME TO GET VISA NUMBERS or “Do I qualify for the World Cup if I get through all this?!” All of the steps required to get to a consular appointment in time to secure visa numbers for your H-2B employees can be daunting.

Further complicating the process are the lurking request for additional information (“RFI”) from OFLC and the request for additional evidence (“RFE”) from USCIS.

We have learned through experience that the solution to this challenge is three-fold: 1) Preparation, 2) Preparation, and 3) more Preparation. It is essential to sit down with your legal counsel at the very beginning of the process, before prevailing wages are requested and before any recruitment begins, and plan your company’s H-2B strategy for the upcoming season.

This planning should include a thorough review of the process followed and explanations and descriptions of employment opportunities provided to the government in previous H-2B application periods. If your needs have changed, these changes must be carefully documented and explained to the government. The government will need to understand why these changes have occurred in your business schedule or business model and why your company’s employment opportunity still qualifies for the H-2B program despite these changes.

Additionally, a detailed schedule and plan for each step of the process should be agreed to long before recruitment begins. This schedule should be tracked throughout the process to enssure your company will be able to stay on course and get to the consular processing finish line while visa numbers are still available and in time to meet your company’s labor needs.

MANAGING THE COST OF THE H-2B PROCESS or “You mean I’m giving an employment opportunity to workers at an inflated “prevailing wage” and I gotta pay for the privilege too?”: Having read all of the foregoing, cost is an obvious concern that jumps to any employer’s mind. Government filing fees are paid for the employer’s application filed with USCIS and the visa applications for the workers filed at the consular post. There are also costs that are associated with the pre-filing recruitment required by OFLC.

Paying attorney fees to oversee and manage this process may seem to push the H-2B program out of reach for many small and medium sized companies. However our office will work with you up front and plan out all of the applicable fees related to the program for each season and to set up a workable payment plan that accommodates your company’s cashflow for that year. We are very proud that our earliest and many of our best H-2B employer clients were once immigrants themselves who our office represented in their own immigration processes. We have helped companies from their very formation, through their successful growth. A key component for many of our start up clients has been the ability to access the H-2B program. We will work with you to try to find a plan that will allow your company to enjoy the same benefits of this program that other larger companies enjoy.

If your company is a larger H-2B employer, we will work with your Human Resources manager to streamline and manage your H-2B process so that it requires less of your company’s time and increase your H-2B success rate.

Navigating the H-2B process can present these and many other hurdles to novice and experienced employers alike.  However, once navigated, this program can play an essential role in securing the reliable seasonal work force that your business needs.  Essential to succeeding in this process is partnering with an experienced firm like US Legal Solutions that has the experience and the skill to help you overcome these hurdles.

 Feel free to contact our office at any time at 314-729-1049 and one of our staff will be happy to schedule a conference call with Attorney Ken Schmitt or visit us on the web at www.us-legalsolutions.com.

 ADDITIONAL RESOURCES: 

US Department of Labor, Office of Foreign Labor Certification:

http://www.foreignlaborcert.doleta.gov/

See also: http://www.foreignlaborcert.doleta.gov/pdf/H-2B_Selected_Statistics_FY2014_Q3.pdf

US Department of Homeland Security, United States Citizenship and Immigration Services:

www.uscis.gov

US Department of State:

http://travel.state.gov/content/visas/english/employment/temporary.html

O*Net (For occupational titles and descriptions of employment positions used by DOL and USCIS):

http://www.onetonline.org/

Foreign Labor Certification Data Center (DOL’s prevailing wage database):

http://www.flcdatacenter.com/

Please Note: This report is provided as a free informational service only to prospective clients of US Legal Solutions.  Receipt of this report should not be construed as establishing an attorney/client relationship.   

The choice of an attorney is an important decision and should not be based solely on advertisement.


[1] http://www.foreignlaborcert.doleta.gov/pdf/H-2B_Selected_Statistics_FY2014_Q3.pdf