másLabor Answers Your H-2B Threshold Questions
In our most recent H-2B Q&A webinar, we received many good questions from our guests! In case you missed it, below is a transcript of those questions and answers. Please contact us today if your question isn’t listed!
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Question 1: “Is H-2B the only visa program out there to solve our labor needs?”
Answer: No, we’ve seen a lot of traction with the specialty TN visas, which are limited to Mexico and Canada. This applies to employers filling positions that require a bachelor's degree, such as landscape architect, engineer, hotel manager, etc. Those who have a more specialty or sophisticated position for which they are looking for help. Similarly, a lot of traction on the EB-3 or green card front, and through employer sponsorship. A lot of those employers have workers who have returned and were the bedrock of their team, so the employer wants to get this individual permanent residency. This allows the employer to not have to worry about the limitations and the volatility of H-2B filings.
Question 2: “What strategies have other companies used to be successful when it comes to filing in October and April?”
Answer: One example is splitting your dates of need or staggering them. This means you would consider filing an early application for maybe a February or March start date for a subset of your total labor need. Then you would reserve the balance for a separate second April 1st application. However, you must be able to support the earlier start date through evidence like historical payroll, a contract, or sales data. This could prove difficult if you have not historically employed temporary workers in February or March, because any changes on an application year to year must be explained at DOL with supporting evidence. Also, there is no guarantee at this point that cap relief visas will be available for earlier start dates. We reasonably expect them to, but there is no guarantee in H-2B.
The second strategy is filing two applications for different occupations. If you can justify differentiating your workforce into two distinct positions, then you can file two applications for the same period of need, each representing a portion of the total workforce. For example, you may file a traditional non-experienced landscape laborer position, alongside a separate experience lead landscape laborer position. Then to further differentiate the positions, you could have the lead landscape position require things like experience or additional tasks, that the standard landscape position would not include. Another possibility is separating your workers into things like hardscape laborers or maintenance laborers, then you split out the job responsibilities accordingly. You want to consider your specific business circumstances with your Case Manager, to make sure these are viable options for you moving forward.
Question 3: "When is the best time for an employer to file for October if they are not going to get returning workers?”
Answer: The sooner the better to start that discussion with your Case Manager. This is because it gives your Case Manager and MAS a chance to review the ebbs and flows of your business, and what the risk assessment would be if seasonality might be tougher to prove for a fall filing. We would probably send the renewals for fall filers out in early March, then finalize job descriptions and details around mid-March, and get the Prevailing Wage in around April. All this must be completed by our July 3rd deadline, which would include all the signatures and details in place on the applications. If you are considering this, reach out to your Case Manager, so we can review your business circumstances to give our best assessment as to whether or not we think this is a viable strategy.
Question 4: "If an employer wants to proceed with NCA visas, and they are in Group D, when will they possibly see workers start arriving? Also, if the workers arrive in June, would they be able to stay the full 10 months or will they have to leave early?”
Answer: As long as you get through your recruitment period, submit the recruitment report, and get the labor certification, then you will be able to file for the Cap Relief visas on or after March 21st. Once you file your visa petition, CIS will have 15 days to either issue an approval or a request for evidence. If you receive a request for evidence this could delay your workers depending on when you provide the evidence. If you receive an approval first, then you can proceed with consular processing. However, depending on what country you choose to use, the timing can also vary. For example, Guatemala typically takes 7 to 10 days, El Salvador typically takes 10 to 14 days, but there are some outliers that can cause it to take longer than that. So, from the time you file your visa petition to the time the workers actually arrive, about 6 to 8 weeks will pass. Unfortunately, even if they come late, you cannot extend the end date you originally requested. As far as going back early, the same rules always apply.
Question 5: "What does the prevailing wage process look like, and why do we do this?”
Answer: What the Department of Labor is trying to do with the prevailing wage, is to make sure that the wages and work conditions of U.S. workers are not adversely affected by foreign labor employment. Therefore, DOL requires you to provide further details about your occupation, job duties, and nature of what the workers will be doing day to day. Based on the duties of the job, DOL looks at duties that can focus on usually considered the highest of, to determine if the job is in the appropriate occupational classifications. Then, based on this, DOL looks at the area of intended employment and takes the mean wage based on those counties in which work will be performed, and grants you with what is called the Prevailing Wage Determination. This PWD assigns the wage you will have to pay both your H-2B workers, and any U.S. workers in corresponding employment who were not exempt based on their tenure.
Question 6: "If an employer decides to move forward with the October strategy, what are the additional fees and implications that one might expect in the process?”
Answer: The application is an entirely different application with new fees and paperwork due, along with the Spring 2025 application. So, you are essentially paying double just to have cap exempt workers for Spring 2025. As far as MAS goes, we give $200 off of your subsequent spring filing, if you proceed with October. However, you will have to pay for both sets of CIS filing fees, one for the visa petition in October and then one for the visa petition that you will file in the spring. Then the worker fees will be due for each application.
Question 7: "What is your advice for people new to the H-2B program?”
Answer: Mas would love to work for you! It is an arbitrary process, and having someone assist you with experience is very helpful, especially for your first year. Also, it is helpful to have someone to make you aware of all your options and possibilities with the program. The more logistically challenging pieces include the chance of possibly not getting your workers on time. Or having to get new workers that you have not worked with in the past.
Question 8: “What does the timeline look like for the October strategy?”
Answer: This does not necessarily mean only October 1st period. In fact, a lot of employers want workers in March, but file 4/1 because there are no visas available. You can bring your workers from October 1st to December, which is great if you have an uptick at the end of your season to justify this timeframe. Also, the benefit of this is any workers you bring, even in the short time frame, are now cap exempt for spring. This means that you could get any lottery group and those workers have already been issued a visa in that fiscal year and can cross again. However, while we have had this first half cap relief for a couple years now, it is not necessarily guaranteed. When we file for February or March dates it will be 90 days out from the expected date of need to submit. If filing for a prior April 1st start date you want to file on the first possible date, because there is no lottery, they are processed in order of start date.
Question 9: “If you are in Group D and in the 15-day hiring post period, are you considered capped out?”
Answer: Historically capped out means that the initial 33,000 allotment has been met, and exhausted before you even have a chance to file for them. Right now, you are capped out of the initial 33,000 allotment, since you are in your 15-day recruitment window, but it is only a matter of time before you submit your report and receive your labor certification. This allows you to file your visa petition with CIS, and you will have to pursue those cap relief visas that will be available March 22nd, so you should be in good shape to take advantage of those cap relief visas. However, if you are in some sort of delay and not able to file a visa petition by the time the cap relief visas run out for returning workers from non-Northern Central America countries, then you will be capped out of cap relief for returning workers. Then your options will be limited to only three options which are: 1. Pursue workers from Northern or Central America 2. Pursue October Strategy 3. Withdraw.
Question 10: “Is there anything anyone can do to help improve chances at receiving a better lottery group placement?”
Answer: We analyze this information every year, and it is truly random. Unfortunately, there is nothing you or your agent can do to increase your chances of getting a better lottery group assignment.