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DOL And USCIS Urge Employers To File H-2B Visas For Spring, Summer 2020 In January

The U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) are urging employers seeking H-2B visas for the second half of the 2020 fiscal year – April 1, 2020, through Sept. 30, 2020 – to immediately apply for a temporary labor certification and file a petition with the USCIS. To be eligible for H-2B visas, the application must be filed before the semi-annual cap of 33,000 is met. 

In recent years, the Office of Foreign Labor Certification (OFCL) has seen an overwhelming increase in the number of H-2B visa applications, as labor certifications typically spike in early January for temporary and seasonal jobs in the spring and summer. Because the demand for H-2B visas remains high, employers should consider starting the process in December by filing a Prevailing Wage Determination. 

The H-2B visa program allows U.S. companies to hire foreign workers to fill non-agricultural temporary jobs during peak seasons in sectors such as landscaping, forestry and hospitality, which are heavily dependent on seasonal workers to alleviate labor shortages. These are far from the only industries that can hire H-2B workers. Other common users of the H-2B visa include the construction industry, where short-term, one-time need can drive hiring; tourism-related industries; and athletics entities with a defined, seasonal schedule. 

The DOL process for obtaining an H-2B certification is a two-step process for employers:

1. Interested employers must first file a complete and accurate Form ETA-9141, Application for Prevailing Wage Determination.

2. Once the Application for Prevailing Wage Determination has been reviewed and a wage determination issued by the OFLC, employers must file an ETA 9142B request for a temporary labor certification with the Department of Labor to demonstrate a need to address a temporary labor shortage. 

The DOL then reviews the ETA 9142B and, once the request has been accepted, instructs employers to complete certain mandatory recruitment steps. 

This is then followed by a third step involving USCIS:

3. If the employer confirms that no qualified U.S. workers have applied for the position, an employer receives a temporary labor certification and must timely file an H-2B petition with USCIS covering the specified number of workers it seeks to temporarily hire.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume IX, Number 337


About this Author

Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes –...

Mercedes Badia-Tavas Immigration Attorney

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

Michael Durham Immigration Attorney Barnes & Thornburg

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...