The H-2B visa application process is complex and time-intensive. Employers who wish to leverage H-2B to bolster their workforce should prepare early and keep careful tabs of crucial deadlines. This article provides a brief overview of the H-2B process along with a projected timeline. Note that the timeline is just that – projected. Delays can and do occur, as the ever-increasing demands for H-2B visas overburden government adjudicators.
Background
The H-2B visa is intended for employers with temporary, nonagricultural, labor needs. Landscapers who perform most of their work during Spring and Summer, hotels and resorts whose businesses oscillate with the holidays, and construction firms that need to temporarily bolster its workforce for new projects are just a few examples of employers who may take advantage of the H-2B.
Unfortunately, there is only a limited number of H-2B visas every year. As of today, Congress has set the annual limit, or “cap,” of H-2B visas at 66,000. This total is divided into two halves of 33,000 visas each – one is reserved for the first half of the fiscal year (October 1 to March 31), and one for the second half (April 1 to September 30). While an employer can apply for H-2B visas with any start date in a year, competition over visa spots compels many to strive for the earliest fiscal-year-half start dates of October 1 or April 1.
A typical H-2B application timeline revolves around one of those two planned start dates, also called the employer’s “date of need.”
5 Months Before Date of Need – Submit Prevailing Wage Application
Before applying for a temporary employment certification, employer must first submit a prevailing wage application, ETA-9141, to the Department of Labor. The form helps DOL determine the appropriate wage for employer’s temporary positions.
ETA-9141 typically takes up to two months to adjudicate, and DoL’s guidance likewise instructs submitting the form “at least sixty calendar days before it is needed.” Recent adjudication time averages between 36 to 39 days, but the average does fluctuate, and some cases do take longer than average. An especially prudent employer might even submit the form 6 months ahead in case of unexpected delays. Once adjudicated, the Prevailing Wage Determination remains valid for at least 90 days.
90 Days Before Date of Need – Submit Temporary Employment Application and Job Order
After receiving the Prevailing Wage Determination, employer can apply for temporary employment certification by submitting form ETA-9142B. The application must be submitted 75 to 90 days before the date of need.
Since most employers like to file this form 90 days before the date of need, and many employers’ dates of need are either April 1 or October 1, this naturally leads to a large influx of ETA-9142B submissions at the start of January and July. To address this large influx of submissions, DOL typically leaves open three-day submission windows. All ETA-9142B submitted during a three-day window, no matter their actual order of submission, are considered submitted at the same moment.
Concurrent with ETA-9142B, employer must also submit a job order, outlining the terms of their temporary positions, with the appropriate state workforce agency. Each state workforce agency has unique procedures for job order submission that are best clarified as early as possible.
ETA-9142B’s processing time varies. DOL adopted a “lottery system” in recent years, which assigns H-2B applications into groups in alphabetical order. If an application is assigned to Group A, employer may expect relatively prompt processing. Subsequent groups – B, C, D, and so on – will have longer wait time.
81 Days Before Date of Need – NOD or Recruitment
In time, employer will receive a Notice of Acceptance (“NOA”) or Notice of Deficiency (“NOD”). If it’s an NOD, the notice itself will lay out additional documents to provide or corrections to make on ETA-9142B and job order. Employer will be given 10 business days to respond to the NOD. The sooner employer responds, the sooner they might move forward with an NOA.
Once an NOA is issued, employer may begin recruitment. This recruitment process is a test of the U.S. labor market, giving U.S. workers “first dibs” on the temporary job openings. Employer must post notices about the temporary position to inform current workers, reach out to former workers, contact bargaining representatives if appropriate, advertise the job openings (typically done automatically by state workforce agencies and DOL), and follow any other recruitment steps as instructed by the NOA.
The lengthiest component of the recruitment process is often the posted notices about the temporary positions, which must stay up for 15 consecutive business days.
60 Days Before Date of Need – Submit Recruitment Report
The recruitment isn’t just for show. Employer must compile a recruitment report, which contains details of the recruitment steps taken, applications from U.S. workers, and outcomes of the job applications. The employer must accept applications from U.S. workers, and may only reject applicants for “lawful, job-related reasons.” The compiled recruitment report is submitted to DOL for temporary labor certification.
Please note that employer must continue to accept applications from U.S. workers until 21 days before date of need, even after submitting the recruitment report.
55 Days Before Date of Need – Receive Temporary Labor Certification and Submit I-129
Once DOL issues the temporary labor certification, the process moves to the Department of Homeland Security (“DHS”). The employer submits a form I-129 with supporting documents, including the DOL-issued certification, to U.S. Citizenship and Immigration Services (“USCIS”).
Employers are strongly encouraged to pursue premium processing at this stage. By paying an additional fee (currently $1,500) to USCIS, employer is guaranteed to have their H-2B application adjudicated within 15 calendar days. Without premium processing, current average adjudication time is five weeks. Again, average fluctuates, and individual cases can deviate from the average.
40 Days Before Date of Need – Submit DS-160 and Schedule Consular Appointment
Once USCIS approves the form I-129, the process moves to the Department of State (“DOS”). A DS-160 form, applying for an H-2B visa, must be submitted for each temporary worker. Within the same day, the workers should also schedule an appointment with their local U.S. consulate office.
Appointment wait time varies depending on the location. Employers can check this DOS page to find out estimated wait time for each consular location.
30 Days Before Date of Need – Consular Appointment
Typical consular appointments involve an in-person interview between the applicant worker and a consular officer. Due to the pandemic, DOS instituted a temporary department-wide policy that gives individual officers discretion to waive the interview. Many consular offices have adopted this policy, allowing applicants to drop off application documents via courier or some other means, and only requiring interviews in cases that require further review.
Unless any problems arise, consular offices typically issue visas in two to three weeks.
15 Days Before Date of Need – Visa Issuance
With the visa issued, the worker may prepare to enter the U.S. and begin work. H-2B visas typically come with a 10-day grace period before the employer-requested date of need, allowing workers to enter early and get settled. Review the visa carefully to ascertain the entry date.
Delays
If we’ve been keeping track, delays can occur in more than a handful of steps along the H-2B process. Prevailing wage determination may take longer than DOL estimates. The ETA-9142B submission may be assigned to a group later than Group A. An NOD may be issued. Non-premium-processing I-129 have longer wait time. Consular appointment and visa issuance may both take longer depending on the consular office.
In face of all the potential delays, employers sometimes complete the process past their date of need. One of the keys during the H-2B process is aggressively managing each step to minimize delays.
We hope you find this article helpful. If you have needs for the H-2B visa, schedule a free consultation with us. We’ll be happy to help.