It happens all the time these days. A contractor is awarded a large contract, but finds he doesn’t have enough workers to perform the job. He advertises the position, asks around the community, always with the same result – no workers available. Finally, as a last resort, he considers importing qualified skilled workers from outside the United States, but everyone tells him it is legally impossible to import such workers. So he ends up violating the law by hiring undocumented workers, as a matter of survival. Something is wrong with this picture.
What is wrong with the picture is the misperception that importing skilled workers is legally impossible. This misperception has been perpetuated over the years by the likes of the U.S. Department of Labor and even, more surprisingly, by over-cautious immigration lawyers. It is a misperception that has so worked its way into the very psyche of the construction industry and the legal community, that there have been calls on Capitol Hill for immigration reform and for new treaties between the U.S. and Mexico to address the labor shortage problem. In fact, before the tragedy of September 11th, 2001, President George Bush was in the midst of holding high-level meetings with Mexican President Vicente Fox on the subject. These talks have since come to a halt, like many other exigencies, in the interests of Homeland Security.
Unfortunately, a lot of time and effort has been wasted trying to fix the labor shortage problem, and all the hysterics and calls for immigration reform have been for the most part unnecessary. The truth is that there is actually a little-used provision in the immigration law for importation of temporary skilled labor: the much-misunderstood “H-2B visa.” This goal of this article is to demystify and clarify exactly what the H-2B visa is all about, and to offer some general information as to how a contractor might go about obtaining approval from the government for the temporary importation of workers from offshore.
OBTAINING A TEMPORARY LABOR CERTIFICATION
A contractor who seeks to import skilled labor for his short-term needs must first obtain a Labor Certificate for a specified number of workers from the U.S. Department of Labor (DOL). He does this by presenting evidence to the DOL that his need for labor is temporary and that there are no workers available in the local labor market. Once the contractor has obtained the Labor Certificate, he files this with U.S. Citizenship and Immigration Services (USCIS), which then authorizes the visas. The USCIS will deny any visa request that does not include a Labor Certificate.
TEMPORARY NEED DEFINED
A temporary need is defined in the applicable laws and regulations as a need that is less than twelve months. Additionally, the need must fall into one of the following categories: one-time need, seasonal need, peak-load need, or intermittent need. In the construction industry, the category that is most often used is the peak load need, which usually recurs annually. In any case, the contractor must present documentary evidence of his temporary need along with the application for Temporary Labor Certificate. Failure to provide such documentation is always fatal to a case. Other documents that are helpful in establishing a temporary need are a detailed itinerary and any larger than normal contracts.
PROVING UNAVAILABILITY OF LOCAL WORKERS
Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. The DOL also opens a job order on the internet for a period of ten days. Interested applicants are instructed to send their resumes and references directly to the DOL, which then forwards these to the contractor. Given the current labor shortage, our experience has been that few, if any, qualified workers send their resumes to the DOL. Those that do rarely show up for work if offered a job. In any event, the contractor must contact any applicant that appears to meet the minimum qualifications. Once the recruitment period comes to an end (usually 14 days), the contractor send a statement of recruitment results to the DOL and waits two or three weeks for approval of the Labor Certificate.
An extra-congressional, internal DOL policy singles out the construction industry as having to get union clearance before the DOL will issue a Temporary Labor Certificate. It is our opinion that this is a burdensome and discriminatory policy. At present, we are informed that a preliminary understanding with DOL officials in Washington D.C. and in Boston has been reached that notification of the appropriate union local is sufficient, so long as the contractor proves that the contact was made. If the union then wishes to refer individuals, they must apply as individuals through the normal channels. The union may not simply send over a roster of names. Additionally, the union has only 5 days in which to make its referrals. This understanding, as stated above, is only preliminary. Total elimination of the union notification requirement is preferred by non-shop contractors seeking to employ alien labor.
ROOM FOR EXPANSION
There are currently 66,000 H-2B visas available every year. However, on average, only 40,000 visas are actually utilized in any one year. This is in marked contrast to the better known H-1B visa, which is utilized to import professional labor. The H-1B visa was originally capped out at 65,000 visa per year, and each year there were more visa applications than available visas. At the insistence of the High Tech and IT lobby, congress raised the cap in excess of 200,000 visas per year. Although the number of available H-1B visas is back down to 65,000, the precedent for the solution is established nonetheless: Even if contractors suddenly take advantage of the H-2B visa to address their temporary labor needs (as the IT industry has done), there is no problem if the visa demand exceeds the supply of available visas – congress can always raise the cap as it has done before.
A WIN-WIN SITUATION
Contractors that take advantage of the H-2B visa to solve their short-term labor needs will not only benefit themselves, but will benefit the labor market on the whole. They will not need to continually run afoul of the law by hiring undocumented workers. Instead, they can bring these same workers into the system (regardless of whether they come from Mexico or Canada or Europe), use their valuable services for several months each year, and then let them go home for a few months until the next peak-load or seasonal labor cycle. At the same time, these same contractors will have effectively solved their short-term labor problems and will no longer have to turn down or lose valuable contracts due to lack of workers. In the meantime, the United States construction industry will have the time to find local solutions to the skilled labor shortage.
Copyright 2007. Ortega-Medina & Associates Ltd. All Rights Reserved.
Orlando Ortega-Medina is lead counsel for the U.S. business immigration law firm of Ortega-Medina & Associates, headquartered in London, England (UK). The firm also maintains an Of Counsel relationship with The Erlich Firm in San Francisco, California. Mr. Ortega-Medina has particular expertise and insight into complex H-2B visa cases, and is frequently engaged by other counsel to troubleshoot visa denials.