Dilip Patel

IMMIGRATION

HIRING SKILLED OR UNSKILLED WORKERS
By By DILIP PATEL AND BRENT REES

MANY EMPLOYERS LOOKING AT H-2B TO FILL TEMPORARY POSITIONS

The shortage of H-1B visas has prompted many employers to start taking a close look at the H-2B visa. The H-2B visa is a temporary, non-immigrant work visa that allows employers, who receive certification from the United States Department of Labor (USDOL) and approval from the U.S. Citizenship and Immigration Services (USCIS), to hire skilled or unskilled workers for up to 10 months each year.

The H-2B visa is currently used by thousands of employers across the country to fill temporary labor, clerical and skilled positions. An employer interested in hiring an H-2B worker to fill a temporary, full-time position, must be able to document a seasonal, peak-load, intermittent, or one-time need for workers and that there are no U.S. workers willing and available to fill the position(s). The ability to prove that the position itself is temporary is a critical distinction for H-2B eligibility. Once the employer has received labor certification from the USDOL and approval from the USCIS, the prospective employee may then apply for an H-2B at a U.S. Consulate in the country of origin. Although an H-2B worker must leave the United States after the employment period has ended, he may re-apply for the visa every year so long as the employer continues to receive approval from the USCIS.

Although the H-2B visa has a statutory numerical limitation of 66,000 per fiscal year, the supply, until now, has been used up much more slowly compared to that of the H-1B visa. As you may remember, the H-1B �Cap� was reached on Oct. 1 in each of the last two years, leaving thousands of temporary specialized positions unfilled. The H-2B �Cap�, however, was not reached until January in FY 2005 and March in FY 2004. A recent change in the law, which sunsets at the end of FY 2006, has made the H-2B visa more attractive to employers by exempting from the �Cap� any beneficiary who has entered the U.S. on a valid H-2B visa at any time within the last three years. The new law also sets aside 33,000 of the 66,000 visas for the second half of FY 2006 so those employers who need temporary workers later in the year (after April 1) are not shut out by the �Cap.�

Unlike the H-1B, the H-2B is not a �dual intent� visa. This means that an H-2B cannot possess the intent to work in the U.S. temporarily now and permanently in the future. Consequently, H-2B applicants typically have to provide evidence to the Consulate of their intent to return to the country of origin after the employment period has ended. Historically, H-2B workers have been hired to fill essential, lower paying jobs in the restaurant, landscaping, construction and hospitality industries. Unlike H-1B workers, H-2B workers generally do not earn enough money during the season to support a family here in the United States and therefore are unable to obtain H-4 visas for family members. With spouse and children staying at home, it is often easier for an H-2B applicant to prove non-immigrant intent.

H-2B applicants from India seeking to fill higher-paid, skilled positions and bring family members on H-4 visas may be confronted with a more stringent burden of proof. Although evidentiary requirements vary from one U.S. Consulate to the next, documents such as a marriage certificate, child�s birth certificate, bank statement, pay stubs, tax records and proof of rent payments or mortgage are generally sufficient to show a non-immigrant intent.

Dilip Patel is a Board Certified Immigration Attorney. He is the founder of the Dilip Patel, P.A. law firm (www.dplawfirm.com) and has practiced business and immigration law in the Tampa Bay area since 1990. He can be reached at (727) 712 0066 or by email at [email protected]