| The following scenario is too common these days. A | | | | seasonal need, peak-load need, or intermittent need. In |
| contractor is awarded a large contract, but finds he | | | | the construction industry, the category that is most |
| doesn't have enough workers to perform the job. He | | | | often used is the peak load need, which usually recurs |
| advertises the positions, asks around the community, | | | | annually. In any case, the contractor must be able to |
| talks with recruiters, always with the same result - no | | | | present documentary evidence of his temporary need |
| workers available. | | | | when he files is application for Temporary Labor |
| Finally, as a last resort, he considers bringing in qualified | | | | Certificate. Failure to maintain such documentation can |
| skilled workers from outside the United States. When | | | | be fatal to a case if you are asked for additional |
| he floats this idea he is met with rabid opposition - | | | | information (a Request For Evidence) or are the |
| everyone tells him it is legally impossible to import such | | | | subject of a post-certification audit. Other documents |
| workers. So he ends up violating the law by hiring | | | | that are helpful in establishing temporary needs for an |
| undocumented workers, as a matter of survival. | | | | H-2B visa are a detailed itinerary and any larger than |
| Something is wrong with this picture. While we will | | | | normal contracts. |
| focus on the construction industry in this article the visa | | | | H-2B Proving Unavailability Of Local Workers: |
| can be used and the rules apply across industry lines. | | | | Proving that there are no available workers in the local |
| What is wrong with the picture is the misconception | | | | labor pool involves advertising the position in a local |
| that importing skilled workers is legally impossible. This | | | | newspaper of general circulation for three consecutive |
| misconception has been perpetuated over the years | | | | days (including a Sunday). The DOL also requires that |
| by the likes of the U.S. Department of Labor (DOL) | | | | the employer open a job order with the State |
| and even, more surprisingly, by over-cautious | | | | Workforce Agency (SWA) for a minimum period of |
| immigration lawyers. It is a perception that has so | | | | ten days. Even with the current labor market, our |
| worked its way into the very psyche of the | | | | experience has been that few, if any, qualified workers |
| construction industry and the legal community, that | | | | send their resumes to the SWA for referral. Many of |
| there have even been calls on Capitol Hill for | | | | those that do rarely show up for work if offered a job. |
| immigration reform and for new treaties between the | | | | In any event, the contractor must contact any |
| US and Mexico to address the labor shortage problem. | | | | applicant that appears to meet the minimum |
| In fact, before the tragedy of September 11,,2001, | | | | qualifications listed for the position. Once the |
| former President George Bush was in the midst of | | | | recruitment period comes to an end (usually 14 days), |
| holding high-level meetings with Mexican President | | | | the contractor submits the labor certification application |
| Vicente Fox on the subject. These talks have long | | | | together with a statement of recruitment results to the |
| since come to a halt, like many other proposals, in the | | | | DOL and waits for approval of the Labor Certificate. |
| interests of Homeland Security. | | | | H-2B - Union Involvement: |
| Unfortunately, a lot of time and effort has been | | | | An extra-congressional, internal DOL policy singles out |
| wasted trying to fix the labor shortage problem, and all | | | | the construction industry as having to get union |
| the hysterics and calls for immigration reforms have | | | | clearance before the DOL will issue a Temporary |
| been for the most part unnecessary. The truth is that | | | | Labor Certificate. This surely is a burdensome and |
| there is actually a provision in the immigration law for | | | | discriminatory policy. If the union wishes to refer |
| importation of temporary skilled labor: the | | | | individuals, they must apply as individuals through the |
| much-misunderstood "H-2B – Seasonal Worker | | | | normal channels. The union may not simply send over |
| Visa." This goal of this article is to demystify and clarify | | | | a roster of names. Additionally, the union has only 5 |
| exactly what the H-2B visa is all about, and to offer | | | | days in which to make its referrals. This understanding |
| some general information as to how a contractor | | | | is only preliminary. Total elimination of the union |
| might go about obtaining approval from the | | | | notification requirement is preferred by non-shop |
| government for the H-2B visa to meet solution to their | | | | contractors seeking to employ alien labor. |
| seasonal labor needs. | | | | The Congressional Mandated H-2B Cap: |
| One of the basic requirements for the H-2B visa is to | | | | There are currently 66,000 H-2B visas available every |
| prove that there are no qualified US workers available | | | | year. Because of the increase in demand for |
| in the market to fill the temporary and seasonal | | | | temporary workers this cap has been reached each |
| employment requirements. Proving the lack of | | | | year for the past several years. Also because of the |
| availability of qualified US workers is generally one of | | | | increased usage of the category USCIS divided the |
| the major burdens on US employers seeking | | | | number of visa (33,000 available beginning October 1 |
| temporary employees. | | | | and 33,000 available on April 1 each year) so that both |
| H- 2B - Obtaining A Temporary Labor Certification: | | | | summer and winter industries can take advantage of it. |
| A contractor who seeks to bring skilled labor from | | | | Contractors that take advantage of the H-2B visa to |
| outside the US to meet his short-term needs must first | | | | solve their seasonal labor needs will not only benefit |
| obtain a Temporary Labor Certificate for a specific | | | | themselves, but will benefit the labor market on the |
| job and for a specified number of workers from the | | | | whole. They will not need to continually run afoul of the |
| US Department of Labor (DOL). He does this by | | | | law by hiring undocumented workers. Instead, they can |
| presenting evidence to the DOL that his need for labor | | | | bring these same workers into the system |
| is temporary and that there are no workers available in | | | | (regardless of whether they come from Mexico |
| the local labor market. Once the contractor has | | | | or Canada or Europe or elsewhere in the world), |
| obtained the Labor Certificate, he files this with US | | | | use their valuable services for several months each |
| Citizenship and Immigration Services (USCIS), which | | | | year, and then let them go home for a few months |
| then authorizes the visas. The USCIS will deny any | | | | until the next peak-load or seasonal labor cycle. At the |
| visa request that does not include an approved Labor | | | | same time, these same contractors will have |
| Certificate. | | | | effectively solved their short-term labor problems and |
| H-2B – Temporary Need Defined: | | | | will no longer have to turn down or lose valuable |
| A temporary need for an H-2B visa is defined in the | | | | contracts due to lack of workers. In the meantime, the |
| applicable laws and regulations as a need that is less | | | | United States construction industry will have the time |
| than twelve months. Additionally, the need must fall into | | | | to find local solutions to the skilled labor shortage. |
| one of the following categories: one-time need, | | | | |