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How Landscaping Companies Can Take Advantage of the H-2B Visa Program

April 6, 2022

In Austin, Grass Works Lawn Care is a commercial and landscaping firm offering everything from tree trimming to irrigation systems to core aeration as well as other services to homeowners and businesses. Ferris MyCue and the rest of the team are dedicated to helping keep outdoor spaces at their most beautiful and functional.

Landscaping companies like Grass Works offer many important services and this requires considerable labor from a team that can handle physically demanding work. Green industries such as landscaping typically need labor year-round, but they often need to hire seasonal workers during the spring and summer months, when demand is highest as homeowners and businesses need help setting up and maintaining their landscaping.

Unfortunately, the industry is facing a severe labor shortage, with many landscaping companies unable to find local employees to help with mowing, raking, planting, and other work. MyCue has seen first-hand how the labor market in landscape companies have been affected by labor shortages. He notes that some “labor markets have been really tight, especially in growing cities such as Austin,” in part because local workers may not be “able and are not willing to perform landscape services because landscape work generally includes labor-intensive long hours.” In cases where local workers cannot easily be found, landscape companies may be able to use the H-2B visa program to hire foreign workers.

What is an H-2B visa?

The H-2B visa is a non-immigrant visa that allows employers to hire non-agricultural temporary workers — including seasonal workers — for a variety of jobs, such as landscaping. These visas allow workers to live and work in the United States temporarily.

How is it used in the landscaping industry?

Landscape companies sometimes work with H-2B visa consultants to hire foreign seasonal workers. The visa program has a cap of 66,000 visas for each fiscal year, which are divided into two parts – 33,000 visas are available starting October 1, and the rest are available April 1. Landscape companies usually secure workers for spring and summer, when the busy season starts for planting and maintaining gardens.

For MyCue of Grass Works, the visa program has had a measurable effect on his business: “It’s impactful to know that you have a labor force in place. Being able to serve your clients and focus on quality usually brings the best out of any working relationship.” He has seen the H-2B visa also create local jobs that local employees want, including positions in sales, administration, and management.

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What is the process like for getting this visa type for workers?

The process of securing a visa requires some advance preparation and requires multiple steps. Much of the H-2B cost and process does fall on the employer, who also needs to stay compliant after the workers arrive. Employers need to advertise for the job, show they will pay a prevailing wage and show there are no local workers available, able, and willing to do the work. The process is complex and it’s important to start early, well before workers are needed. This is especially the case since some years the cap is met in February for visas available in April.

Employers begin the process by submitting a Prevailing Wage Determination (PWD) to the U.S. Department of Labor and then filing ETA 9142B with the Department of Labor or a job order with the SWA.
Once this is complete, employers must apply for and receive temporary labor certification from the Department of Labor.
Once the temporary labor certification is secured, employers file Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). As part of the process, the employer needs to submit a copy of the final determination page if the employer used the FLAG system to apply for certification or the original temporary certification with Form I-129.
After the H-2B visa has been approved, the foreign worker hired by the employer must file DS-160 with the U.S. Department of State.
The foreign worker may need to attend a consulate in their home country to get biometrics taken.
The worker can then seek entry to the U.S.

Some H-2B visa consultants and landscaping companies seek to secure H-2B workers already in the country. Since there are many companies competing for a total of 66,000 H-2B visas and since the application process can take months, some landscaping companies may be able to recruit workers who are already on H-2B visas inside the U.S., working for companies whose seasonal work ends in the spring or who are working for companies whose increased demand is ending around spring. Working with an immigration attorney at Farmer Law can help businesses determine how to find and hire such workers.

Who qualifies, and under what conditions?

Landscaping companies may qualify for H-2B workers if they have a seasonal or temporary need for workers and can show they cannot hire locally for the prevailing wage. As part of the visa process, companies must be able to show they will be able to hire workers for 35 hours per week and pay the prevailing wage. While hours may fluctuate, a company needs to show that in every 12-week period they can guarantee three-quarters of the worker’s hours.

Workers hired on an H-2B visa must be able to perform the work required and must not have an intent to immigrate. They must also come from specific countries and be admissible into the United States. If they qualify, H-2B workers can stay in the United States and work for their employer for the time granted by the visa, though the visa can be extended. H-2B visas can only be extended for up to three years. After that, a foreign worker in the U.S. on that visa needs to leave the country and wait 90 days before applying for a visa again.

How can Farmer Law help?

To hire H-2B workers, employers need to meet many requirements. They need to show a recurring, seasonal need for labor, which may require the Department of Labor to look at payroll summaries. Some landscape companies, especially in Texas, may have year-round needs, which may make business owners wonder whether they should apply for the H-2B visa program or a different program.

Another common issue for landscaping companies is a worry about hiring illegally, by not verifying employment authorization and identity of workers. The fact is that many professions need more workers than are available and willing to work locally, but immigration law can be complex, especially for busy landscape company owners, whose primary work is to please clients, not deal with the intricacies of the immigration system.

Farmer Law can address all these issues and help you navigate the application process for the H-2B visa. We can handle most of the process, from helping you find qualified foreign workers to keeping you compliant to helping you in the event you are ever audited by the Department of Labor. Our role is to be a partner in your hiring of foreign workers for your landscape company.

The legal team at Farmer Law has worked with many landscapers and other professionals in the green industry. For MyCue of Grass Works, working with Farmer Law made a significant difference. MyCue found the visa process “very complicated. The H-2B employer assumes a lot of risk in the program, with a lottery system, cap, and DOL officers kicking back applications, prolonging the process.” He was concerned about “timelines that need to be met, responses from counsel, and client support – such as providing documents.” After working with four other law firms, he found that these “basic items were not being met,” a problem that “created issues and uncertainty in our workforce.” He was referred to Farmer Law and has remained a client ever since.

MyCue is not alone in his experiences. When a landscape company applies for H-2B visas, they need timely responses, support with documents, and responsive communications. They don’t just want to outsource the application process; they need a real partner to help secure reliable labor. Farmer Law works hard to provide this level of service for busy landscaping companies, so businesses can seek stability in their workforce.

We understand the challenges and needs of the green sector, and we have created services to address those requirements. If you are interested in hiring foreign workers and want legal help so you can focus on your business and not on immigration matters, contact Farmer Law today for a consultation.

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Blog

How Landscaping Companies Can Take Advantage of the H-2B Visa Program

What is an H-2B visa?

How is it used in the landscaping industry?

Follow Us On

Have a Question?

More Information from Farmer Law

Immigration Law

What is the process like for getting this visa type for workers?

Who qualifies, and under what conditions?

How can Farmer Law help?

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