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H-2B Guest Worker Program Poses Problems for Both Workers and Employers

file000581923017.jpgThe H-2 nonimmigrant visa program allows employers to bring in unskilled workers for temporary jobs. H-2B visas are available for non-agricultural jobs. The program has been the target of criticism from immigrant advocacy groups, which charge that guest workers may be subject to exploitation and abuse at the hands of their employers, and that the law does not provide adequate oversight to protect workers. From the employers’ perspective, the regulations governing the program are in disarray, with no clear guidance on how the government determines wage levels and other factors affecting guest workers.

Employers may petition for H-2B visas for workers needed for temporary jobs. This may include a need to fill a position temporarily due to a one-time occurrence, or a job that is seasonal or otherwise recurring. In order to petition successfully for an H-2 worker, an employer must obtain a certification from the U.S. Department of Labor (DOL) by showing that no qualified U.S. workers are willing or able to fill the position, and that the immigrant worker will not drive down wages for comparable jobs held by authorized U.S. workers. This latter requirement generally depends on the “prevailing wage” for the job, as determined by the DOL.

The American Civil Liberties Union (ACLU) has raised concerns about the treatment of some H-2B guest workers. Recruiters, who are not subject to U.S. law, allegedly make unfounded and lavish promises to prospective guest workers, and then charge high fees to match the workers with U.S. employers. The workers may find that the actual employment does not match the recruiters’ description, but that they cannot leave the job because of the debt incurred to get to the U.S. and the fear of deportation if the employer withdraws its support. According to the Southern Poverty Law Center, the legal protections extended to H-2A visa holders, such as reimbursement of travel costs and wage regulations, are not available to workers with H-2B visas.

The issue of wage regulations for H-2B visas affects the employers as well, since the exact method of determining prevailing wages for guest workers remains undetermined. New regulations enacted in 2008 provided a specific methodology similar to that used to determine prevailing wages in the H-1B program, but those regulations remain in limbo since a federal judge struck them down early last year. CATA v. Solis, No. 09-240, opinion & order (E.D. Penn., Mar. 21, 2013). The court found that the regulations would have adverse consequences for U.S. workers.

The DOL developed an interim prevailing wage rule in April, but it was partly struck down in December by the Board of Alien Labor Certification Appeals (BALCA). In re Island Holdings LLC, No. 2013-PWD-00002, order (PDF file) (BALCA, Dec. 3, 2013). The question that arises from BALCA’s ruling is how the DOL can apply prevailing wage determinations to employers whose H-2B labor certifications have already been approved.

Applying for immigration benefits requires a thorough understanding of the law and careful preparation. Immigration attorney Samuel C. Berger helps businesses petition on behalf of prospective immigrant employees to enable them to come to the U.S. We also represent immigrants and prospective immigrants who seek visas to come to New York or New Jersey areas, or who have already made their homes in this area. To schedule a confidential consultation to see how we may assist you, please contact us today online or at (212) 380-8117.

More Blog Posts:

Courts Allow Undocumented Immigrants to Sue for Wages Under FLSA, State Labor Laws, New York & New Jersey Immigration Lawyer Blog, December 17, 2013
O-1 Visas Give Businesses a Way to Bring In Workers of “Extraordinary Ability,” While Use of B-1 Visas Results in $34 Million Fine for One Company, New York & New Jersey Immigration Lawyer Blog, November 19, 2013
Federal Court Blocks City Ordinance That Penalizes Businesses Employing Undocumented Workers, New York & New Jersey Immigration Lawyer Blog, November 5, 2013
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