Better late than never? H-2B Regulations Present Timing Challenges

When the U.S. Department of Homeland Security (DHS) and U.S. Department of Labor (DOL) jointly published new H-2B regulations in April 2015, one of the principal objectives was to bring the application process closer in time to the employment start date.  DHS and DOL believed that doing so would result in more U.S. workers applying for available jobs because they would be able to start work sooner. Specifically, the 2015 regulations provide that employers must submit the temporary labor certification application to DOL no more than 90 days (and no fewer than 75 days) before the employment start date.

Unintended Consequences

While the goal of finding more US workers to fill available jobs is laudable, one unintended consequence of this condensed filing period is the challenge employers face in ensuring that H-2B workers are able to arrive at the work site by the start date.  During the application period, H-2B employers must not only obtain a temporary labor certification from DOL but must also obtain an approved H-2B petition from USCIS.  Only after USCIS approves the H-2B petition may the H-2B workers apply for visas at U.S. Consulates, a process often delayed by appointment wait times and processing times. This means H-2B stakeholders are working with three different government agencies within – at most – a 90-day period. And none of this factors in arranging for the actual travel to the US.

Practical Impact

What is the practical impact? Well, it’s simple – H-2B workers rarely arrive at the worksite on time. This is particularly problematic for H-2B employers because the employment period is typically only a few months to begin with, and the need for the H-2B workers’ services is almost always acute.  For example, if a ski resort relies on H-2B housekeepers to clean guest rooms, their arrival after the busy holiday season may have a severe impact on the resort’s business, including guest dissatisfaction and even loss of revenue.  To that end, it is critical that the government do everything possible to adjudicate H-2B petitions promptly, including avoiding the issuance of frivolous requests for evidence.  In addition, H-2B employers should file the temporary labor certification at the 90-day mark, as doing so will maximize the chances the H-2B workers will arrive as close as possible to the work start date.

To learn more about the H-2B program, contact Chad Blocker.