Immigrant Stories - Obtaining visas for foreign-born workers

[Thanks to Liliana Gallelli, who cowrote this article]

The federal government has long had a sort of “don’t ask, don’t tell” policy toward much of our economy here—wineries, agriculture, restaurants, hotels, and construction, among others.

It goes something like this:we won’t ask if your workers are legally here and please don’t tell us, or we’ll have to deport them and your industry won’t have workers to hire.

Sonoma County is suffering from an ever-growing shortage in labor. Contributing factors are low interest rates leading to an increase in business development and a tight housing market, made worse by the fires. Draconian immigration policies have further worsened the situation.

Unknown to many employers, a guest-worker visa exists to supposedly help fill the gap in business personnel needs. That visa is the H2 visaH2A for agricultural workers, and H2B for temporary, nonagricultural jobs. But the bureaucracy an employer is required to navigate and the costs of the process are too daunting for most.

The H-2B temporary non-agricultural program allows U.S. employers to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs. This visa is a highly technical process that involves multiple state and federal government agencies, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.

While there are numerous reports that businesses throughout the nation are being hurt by the inability to count on a labor force, H2 visas are capped at only 66,000 per year (33,000 for workers required during April 1 – September 30, and 33,000 for October 1 – March 31). In fiscal year 2018, U.S. Citizenship and Immigration Services (“ USCIS”), received approximately 2,700 H-2B petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, conducted a lottery February 28 to randomly select enough petitions to meet the cap.

Despite the Trump Administration’s focus on “Buy American, Hire American”, U.S. businesses depend on immigrant workers. After strong lobbying by companies ranging from tech to Maine lobster, The Secretary of Homeland Security, in consultation with the Secretary of Labor, decided to increase the numerical limitation on H–2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2018.

Temporary worker visas usually are contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so. This includes obtaining the requisite prevailing wage determination from the US Department of Labor. Thus, before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

In order to receive an H-2B temporary labor certification, the employer must establish that:

▪ There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

▪ The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

▪ Its need for the prospective worker’s services or labor is temporary. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer’s need is considered temporary if it is a(n):1) a one-time occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent need

Embarking on the H2 visa also requires a significant economic commitment: Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from their hometown to the job site prior to employment, and back again when the employment period is over, and housing that must be provided to the foreign worker. Best estimates on costs alone: $8,000 to $10,000 per worker.

Oh, and by the way, no persons who are already here without status are eligible. That means those workers currently in your employ who are undocumented are out of luck; they won’t be able to get this visa. You need to find appropriate workers in Mexico or some other country and bring them here to work at your jobsite. It’s likely there will be no way for them to come here before you’ve spent a lot of money to get them the visa and get them here. And they are not getting a visa if they’ve been here illegally.

So, if you’re a winery owner, the U.S. government has a lengthy, cumbersome and expensive process you can use to hire workers you’ve never met or never employed, and probably have never been to the U.S. This is just another example of why our immigration laws need reform.

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