WHAT HAS TWO LETTERS, ONE NUMBER, AND CAN ELICIT ABSOLUTE JOY on one day and complete dread the next? For those who answered H-2B, you must be one of the many clubs across the country that rely on the H-2B seasonal visa to properly staff for your busy periods.
While H-2B seasonal visa petitions have thrown major hurdles at clubs over the past few years, the H-2B visa remains the best option for a club to supplement its local staff and ensure proper staffing levels during its busiest times of year. Before we jump into the challenges of the H-2B visa and outline where the visa stands today, let us first look at the H-2B visa’s benefits for clubs.
Positives
Clubs across the country use the H-2B visa to help solve the common problem of staffing the beginning and ends of seasons when college students and J-1 trainee visa holders are unable to work (see box on page 32 for definitions). For example, clubs from the Carolinas to Maine find H-2B visas valuable because they provide staff to work in May and September of every year—two months where it can be very difficult to find reliable staff. In addition, many H-2B visa holders see seasonal work as their careers, and clubs find them to be extremely professional and hard working. Also, many clubs recruit on their own from clubs with opposite seasons (e.g., a club in Florida recruiting from a club in New York), saving the club costs while having an opportunity to see the H-2B worker perform in a similar environment. Furthermore, some clubs are in remote areas and the H-2B visa is the only way that the club can find staff when the local workforce is too small.
Negatives
Although there are many positives, it is important to understand the negative aspects of H-2B visas. First, there have been numerous delays, changes, inconsistencies and uncertainty over the past three years.
Today, the H-2B visa process is one that remains extremely frustrating for clubs. The government, especially the Department of Labor (DOL), became so backlogged during the past six months that clubs that filed petitions on the first day possible saw their petitions approved right before, on, or even shortly after their seasonal start date. There has also been increased scrutiny by U.S. Citizenship and Immigration Services, an agency that up until recently essentially rubber-stamped H-2B visa petitions.
Outside of the delays and government scrutiny, there are also many new regulations and mandates that arose out of the April 2015 H-2B regulations and Congress’ appropriations bill in December 2015. The application process now looks much different to those with prior H-2B visa experience, with the most impactful change being a compression of the application process timeline that stripped employers of valuable leeway in seeing approvals well in advance of their start dates.
From a financial standpoint, employers are now required to pay H-2B employees the offered wage “free-and-clear,” meaning that expenses that have been previously deducted from employees’ paychecks are now strictly regulated—and aside from housing—are largely forbidden. Employers also have to pay for inbound and outbound travel, with limited exceptions, and pay for all visa-related costs. Clubs must also guarantee at least 35 hours of work per week to all H-2B visa employees.
Substantial changes have also been implemented for employers who use H-2B recruiters. There are additional requirements during the recruitment stage of the H-2B visa application process and in the requirements governing retention of documents. Very importantly, the government increased the penalties for non-compliance, as employers can now be fined $10,000 per violation.
Club Response
So how does your club best and most successfully navigate the current H-2B visa landscape? First, begin the H-2B visa process six months in advance of the seasonal start date. Clubs must be ready to move forward with all aspects of the H-2B visa petition on the first day possible.
Second, it is no longer advisable to use a recruiter or agency for the legal work associated with the H-2B visa petition. The H-2B visa process is difficult and rife with many legal nuances, including compliance and record-keeping provisions. Clubs should consider hiring a lawyer experienced in the H-2B visa process to help prevent significant delays, mistakes and even denials, and—in the case of an audit or government investigation—thousands to hundreds of thousands of dollars in government fines. Thankfully, one trend is that many recruiters and agents who previously handled clubs’ H-2B legal work are more commonly referring it to experienced H-2B attorneys.
Finally, a club will put itself in the best position for success if it is prepared to move forward with the process at the appropriate time of year. Communication with department managers prior to that date is key to ensure that a club knows which positions it wants to staff through H-2B visas and that the H-2B visa process is accounted for in the respective department budgets. By being prepared, a club can then move forward on the first date possible, even if it is still in its prior season. For example, a club in Florida with an October 1 start date should commence the process on April 1, even while it is wrapping up its current busy season.
With the understanding of how important it is to start the process on the first day possible, a club should begin drafting the necessary documentation and applications six months from the start of its seasonal start date and file the Applications for Prevailing Wage Determinations five months before its seasonal start date (see box above).
Potential Legislative Changes
In light of some employers’ frustrations with the H-2B visa process, one common question is whether there is light on the horizon through legislative changes. The most likely change to the H-2B visa process will hopefully be the clearing of DOL’s backlog and resuming H-2B visa petition processing in the timeframes that were outlined in the March 2015 regulations (seven-day initial processing rather than 60 or more days). This would greatly reduce stress by knowing H-2B visa employees would be ready to work on the first day possible.
There are also discussions of revisions to the April 2015 regulations and even a new guest worker visa that the National Club Association recently mentioned to clubs. The club industry is not the only one negatively impacted by the H-2B visa delays. Below is a list that outlines the top occupations that utilize H-2B visas (data is from 2014, the most recent year that DOL released these figures):
- Landscaping and groundskeeping workers
- Forest and conservation workers
- Maids and housekeeping cleaners
- Amusement and recreation attendants
- Meat, poultry and fish cutters and trimmers
- Construction laborers
- Coaches and scouts
- Waiters and waitresses
- Nonfarm animal caretakers
- Helpers and production workers
Despite the numerous interests involved from several important industries, with today’s political landscape in which any visa-related proposal immediately brings about intense debates of immigration reform, these changes are likely not coming soon (especially in an election year). Therefore, it is more important than ever to take the precautions discussed above to put your club in the best position possible.
For the foreseeable future, H-2B visas are the best option for clubs to fulfill their seasonal staffing needs. While the J-1 trainee visa can offer some viable alternatives, it is not as flexible as the H-2B visa in terms of when employees can work in the United States, duration of employment, experience and professionalism of employees, and allowing a club to bring back the same employee year after year. H-2B visas continue to benefit clubs by providing a pathway to bring great foreign talent to the United States to help a club properly staff for its busy season.
Keith A. Pabian is an immigration attorney at Pabian Law, LLC, representing clubs, resorts and the hospitality industry in visa and immigration matters. He can be reached at [email protected] or 617-939-9444. This article was prepared for educational purposes only.