H-2B Visas & Construction Labor Shortage

May 25, 2022

The construction industry’s labor shortage isn’t new, nor is it news — at least, not to employers who have struggled for years to hire the labor they need despite record industry employment.

Despite the challenges facing the U.S. as it recovers from the extraordinary setbacks of COVID-19, Texas remains an all-around powerhouse in job creation and population growth — and that translates to market booms for the construction sector. But how can employers meet the demands of the industry when 81% of construction employers have a difficult time filling positions? One solution is H-2B visa construction jobs, which allow foreign nationals to come to the U.S. to perform non-agricultural work.

What is the H-2B visa program?

With H-2B visa jobs, non-immigrant guest workers are permitted to work in the U.S. in temporary, non-agricultural jobs. This program is not intended to provide a pathway to permanent residence or citizenship, and it does not have specific educational, occupational, or skill requirements.

An analysis of the Department of Homeland Security’s (DHS) fiscal year 2018 claims data showed the construction industry was the fifth-highest that year in terms of industries with H-2B hires, with 5,756 approved H-2B workers. This is consistent with long-term data, too. In 2014, construction was the sixth-highest, with more than 2,407 industry employers receiving certifications for workers.

The labor certification is the first step in the process of hiring workers under the H-2B program. Because this program is designed to fill a need identified by U.S. employers, the process is initiated by employers rather than the guest workers themselves.

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Who qualifies for H-2B visas and under what conditions?

Employers who want to supplement their labor force with foreign workers should always carefully consider whether the work they need done falls under the eligibility requirements of the H-2B program. So how do you know if you can even seek labor certification?

In order to be eligible for H-2B labor certification, employers must

Have valid Federal Employer Identification Number (FEIN)
Have a physical place of business in the United States, and
Have a means by which you can be contacted for employment

If you meet those qualifications as an employer, then you can consider whether the positions you need workers for may qualify by asking yourself a few general questions.

Are the job duties temporary or seasonal in nature? For H-2B purposes, this means the job is either an intermittent or a one-time occurrence, seasonal, or peak-load need.
Is the job opportunity for full-time employment? The job opportunity must be a bona fide, full-time position of at least 35 hours per week.
Is the job opportunity non-agricultural? The expectations and duties of the job must be consistent with the normal and accepted qualifications and requirements of the position, and it cannot be in the agricultural sector — that would be the H-2A program.

In order to hire H-2B workers, you must go through a lengthy application process to determine that there are not enough U.S. workers who are qualified and available to perform the work and that the employment of H-2B workers will not adversely affect the wages and working conditions of U.S. workers in similar positions.

While experienced construction industry employers already know when hiring is tough, the Department of Labor (DOL) will still need to certify that fact formally. If you believe that your hiring needs will pass muster with the DOL, then you are ready to begin your application.

What are the steps of the application process?

Employers should begin the process about six months before the actual start date of the work. The application will need to make its way through several agencies, and getting the right paperwork in at the right time is crucial when it comes to getting workers when you need them.

Prevailing wage determination (PWD): The first step is submitting ETA Form 9141 to the DOL. This is where you will provide a statement explaining your need for the labor to be performed, and a detailed description of the job’s duties and location(s) of the work. This allows the DOL to decide what the required wage is for the job.
State job order: About 90 days before the start of work, once the DOL sends the Final Determination Letter with the prevailing wage and you agree to pay the rate set in the PWD, you will need to submit the H-2B Job Posting Request Form to your state workforce agency.
Labor certification application: The state workforce agency reviews and approves the job order and sends their Notice of Acceptance, and you can submit ETA Form 9142B and any necessary appendices to the Chicago National Processing Center.
Recruitment: Within 14 days of the Notice of Acceptance, you will need to also begin doing your part in recruiting U.S. workers while the state workforce agency does the same.
Submit recruitment report: After you complete your required recruitment steps, you will need to submit documentation of your actions, including justification for every refusal of a U.S. worker and evidence that you contacted former workers. This will happen about 30 to 60 days before the work start date.
Petition USCIS: You can now begin petitioning United States Citizenship and Immigration Services (USCIS) for non-immigrant workers with a copy of your labor certification and the Form I-129 petition. If the lottery system works in your favor, you will finish accepting referrals for U.S. workers 21 days before the start of work and then finalize and sign your recruitment report.
H-2B worker recruitment: About two weeks before the start of work, you will begin recruiting H-2B workers using the recruiters listed on your labor certification, provide information to schedule visa interviews, and provide job order to the workers.
Application for admission: After workers are selected and approved by USCIS, you will process the workers, file an online application with Customs and Border Patrol, pay the fees, and organize transit to the proper port of entry.
Employ workers: As part of the employment requirements of H-2B workers, you must — along with paying a prevailing wage — provide Social Security numbers and adequate housing, benefits, and working conditions to your workers, all of which you will have documented in your application.

The Wage Hour Division has additional requirements intended to protect both the rights of workers and the program itself that you are responsible for during and after employment, including preserving all employment records for three years.

Are there any caps on the number of H-2B workers?

Like many other visa programs, the H-2B guest worker program has limits on the number of people allowed to receive authorization to work in the U.S. The H-2B program has a cap of 66,000 workers, which is divided up equally in each half of a fiscal year, which means:

Up to 33,000 visas are available to workers who begin employment between October 1 and March 31
Another 33,000 are available to workers whose employment begins between April 1 and September 30, along with any “leftovers”

What are the odds of approval?

In order to encourage employers to petition for labor certification as early as possible, the Department of Labor updated their filing system so it would place applications for processing in the order they were received in the electronic filing system. However, on January 1, 2018, over 5,000 petitions were filed — for a total of 96,400 workers — just for spring and summer jobs, and the filing system crashed.

After that, the DOL decided to start using random selection to process applications from employers. USCIS also decided to start using a lottery process to process applications from foreign workers.

Even with so many available visas, labor shortages in a number of industries mean that it’s a competitive process, and any delays can cause serious problems for employers who are in need of the labor force.

How can Farmer Law help?

The 2021 Dodge Construction Outlook anticipates that the 2021 Texas construction market will reach at least $771 billion, making gains everywhere from new residential construction to wind farms across the state. Some businesses even managed to use their shuttered time during the pandemic to reinvent their spaces, and many homeowners leveraged historically low interest rates with cash-out refinances for residential remodels.

Not only do employers have to understand a complicated filing schedule and lottery system, there are 176 H-2B rules for workers and employers — not including additional requirements created in 2020 in response to the COVID-19 pandemic.

Staying on top of the process in the right timeline is a lot to put on an already busy plate. For more information about how partnering with a strategic legal advisor can help you get the workforce you need, contact Farmer Law today.

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H-2B Visas & Construction Labor Shortage

What is the H-2B visa program?

Follow Us On

Have a Question?

More Information from Farmer Law

Immigration Law

Who qualifies for H-2B visas and under what conditions?

What are the steps of the application process?

Are there any caps on the number of H-2B workers?

What are the odds of approval?

How can Farmer Law help?

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