Search
Contact
Login
Share this article
H-2 visas enable U.S. businesses to hire foreign nationals for temporary or seasonal employment. Learn more about the different H-2 visa types and how BAL legal experts deliver a proven approach to support temporary staffing opportunities.
The H-2A visa program allows a U.S. employer or agent to bring foreign nationals to the United States for temporary or seasonal agricultural jobs. The foreign national must have a standing offer of employment to qualify for an H-2A visa, and their prospective employer must meet certain regulatory requirements. If all legal requirements are met, the employer may petition the U.S. government to initiate the H-2Aprocess for the foreign national worker.
To qualify for H-2A nonimmigrant classification, an employer must: • Offer a job that is temporary or seasonal in nature. • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary work. • Demonstrate that employing the H-2A worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Prove that the visa holder intends to return to their home country after the visa expiration date. • Submit a valid temporary labor certification from the U.S. Department of Labor.
A worker with an H-2A visa may be granted a stay for up to the period of time authorized on the temporary labor certification submitted by their employer to the U.S. government. H-2A classification stays may be extended in increments of up to 1 year. The maximum period an H-2A classification stay permission is 3 years.
Whenever possible, BAL helps keep families together by assisting employees’ spouses and minor children to qualify for H-4 visas. Additionally, qualifying spouses and dependents of an H-2A worker may be allowed to enter the United States during the duration of their spouse’s H-2A visa, and the worker is given the unrestricted permission to travel into and outside of the U.S. during their visa period as well. Family members of H-2A workers are ineligible for employment in the U.S. under this program but may be able to personally qualify for a work visa.
H-2A visa holders are entitled to protection under U.S. wage and labor laws, workers’ compensation benefits, transportation, and certain housing and education benefits for themselves and their family. Wages for H-2B workers must be the highest of the adverse effect wage rate (AEWR), the applicable prevailing wage, the agreed-upon collective bargaining rate, or the Federal or State statutory minimum wage. H-2A employers are required to guarantee a minimum number of work hours to H-2A workers and offer employment for at least three-fourths of the total workdays in the contract period. Workers have the right to report any violations without fear of retaliation and be represented by an attorney in matters related to their employment. Terms and conditions of employment must be provided in a written contract by the employer in a language the worker understands.
H-2A classifications may be extended in increments of up to 1 year each. The maximum extension permitted under the H-2A program is 3 years. With certain exceptions, after 3 years an H-2A worker must leave the U.S. for 3 consecutive months before seeking readmission.
Learn more about how BAL’s temporary workforce immigration experts can help your business.
An H-2B nonimmigrant visa allows a U.S. employer or U.S. agent to bring foreign nationals to the U.S. for temporary, non-agricultural jobs.
Many employers, such as seafood processors and the forestry industry, use the H-2B visa program to retain temporary, seasonal foreign national workers.
To qualify for H-2B nonimmigrant visa classification, an employer must: • Show that there are not enough U.S. workers able, willing, qualified, or available to do the temporary, non-agricultural work. • Demonstrate that employing the H-2B worker will not negatively impact the wages and working conditions of similarly-employed U.S. workers. • Show that the need for labor is temporary in duration. Work placement and temporary agencies are not eligible for the H-2B visa program. • Submit a valid temporary labor certification from the U.S. Department of Labor.
In order to demonstrate an H-2B program temporary need for labor, an employer must show that the labor is: • A one-time occurrence: An employment situation that is usually permanent has created the need for a temporary worker, the employer has not employed workers for the services or labor in the past, and the employer will not need to hire workers to perform the services or labor in the future. • Seasonal: The employer’s need for services or labor is tied to a season of the year by an event or pattern, and is of a recurring nature. • Peak load: The employer routinely employs permanent workers to perform the services or labor, needs to supplement its permanent staff due to a seasonal or short-term demand, and the temporary staff additions will not become part of the employer’s regular operation. • Intermittent: The employer has not hired permanent or full-time workers to perform the services or labor, and occasionally or intermittently needs workers for short periods.
The H-2B visa is a nonimmigrant visa that does not directly lead to a green card, but H-2B visa holders can apply for an adjustment of status through employment-based preference categories. The steps for employers when sponsoring a foreign worker for permanent residence generally include filing a prevailing wage determination with the U.S. Department of Labor, submitting an application for permanent labor certification (PERM), filing a Form I-140 with U.S. Citizenship and Immigration Services. BAL is available to help companies navigate the green card process for H-2 and other eligible workers.
The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.
Check out this video made by USCIS regarding the Form I-9.
Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.
Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.
A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.
All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.
In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.
In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.
Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us for more information!
In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:
Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us for more information!
Over the past 43 years BAL has helped thousands of clients create an immigration program or enhance their existing one. Based on our experience and expertise, here are some considerations as you get started.
We’re sure you’ll have more questions as your program takes shape, and BAL would be happy to help you with proven, real-world answers.
BAL Partner Ashley Foret Dees is one of the nation’s preeminent experts on H-2 visas and the founder of the Louisiana State Bar Immigration Law Section. Since 2009, she has been a pivotal asset to corporate employers reliant upon temporary or seasonal workers to secure global talent and remain competitive. We recently sat down with Ashley for a conversation about trends in H-2 visa practice and her experiences as a woman in the profession.
What are your areas of practice?
My specialty is representing employers interested in securing the critical skills of global temporary or seasonal workers through the H-2 visa process. There are two types of H-2 visas: H-2A and H-2B. Both visas permit an eligible U.S. employer or agent to hire a temporary or seasonal worker who is a foreign national. An H-2A visa is used solely for the hiring of agricultural workers, and an H-2B permits the hire of nonagricultural workers.
I also represent clients in family immigration, including defense of removal, asylum cases and DACA.
What’s the difference in processing time between H-2A and H-2B visas in FY2023?
H-2A agricultural visas are much easier — you can turn around the entire filing in 60-75 days. Those are very fast because there’s no cap for H-2As.
H-2 B visas are so different, especially this year. We remind employers that nowadays they have to back up their program timeline if they want to apply for an H-2B. Prevailing Wage Determinations are now taking an extra 45 days, which is long. That backs up the timeline to April 15. So, when people call in July and say, “I’d like to talk about October H-2B visas,” it’s like, “Well, we can talk about next year’s October visas.”
What other hurdles are employers interested in H-2 visas encountering?
The majority of employers who utilize the H-2A and H-2B visa programs are small businesses trying to leverage themselves into a really complicated federal visa program. Most small business owners don’t have a grasp on what opportunities are available for employers and find the process intimidating.
What questions are H-2B employers asking about this year’s lottery?
Everyone also wants to know about strategy right now. They’re interested in moving start dates, trying to get a supplemental visa number from one of the special reserved countries, and what to do if they’ve got such a bad position in the lottery their staff won’t be able to arrive this year. I help employers strategize, predict and find solutions within the H-2 program.
Can employers with preexisting immigration programs leverage H-2 visas as a mobility strategy?
There are some entities, like hotels, that should consider H-2s and other visa programs in combination with their existing programs. Hotels could mix having a J-1 trainee program with an H-2 visa program, and then move some of those workers into PERM status. I think there are a lot of industries out there that have a peak need to supplement their staff.
What interested you in immigration law as a field of practice?
The Catholic Charities (CC) in my area of Louisiana ran a very large refugee resettlement program that needed an attorney who spoke Spanish. My introduction to immigration law was doing asylum work with CC, which continued after graduation. Since there were no other practitioners in my area of the state practicing immigration law, I hung a shingle of counsel to a firm in 2009 — and opened my own practice in 2013.
What attracted you to becoming a partner with BAL and relocating your entire team to the firm?
I run a global practice, and my client employers are all over the country. It was an opportunity I couldn’t pass up — to leverage BAL’s advanced technologies and resources and continue to expand my H-2 practice much faster than I could on my own.
BAL is award-winning when it comes to advancing the status of women attorneys in the profession. How important was that to you when you were considering joining BAL?
So important. I think BAL having such diverse partners, attorneys, staff — and particularly women — is awesome.
Most of my clients are men. The interaction with women partners and attorneys is so crucial to my growth, learning and understanding of balance in my own life. And I think women immigration attorneys — and women attorneys in general — are such a powerhouse.
Ashley Foret Dees is a partner with BAL and a leading national expert and strategist in the areas of H-2A and H-2B employment visas. She has over a decade of experience representing clients in agricultural, seafood, hospitality and other industries. Ashley is a regular speaker on H-2 visa topics at the American Immigration Lawyers Association (AILA) Annual Conference and AILA Mid-South Chapter, and previously served on the AILA National Pro Bono Committee. She is also a member and former H-2 Visa Chair of the AILA Department of Labor Liaison Committee. Ashley is fluent in Spanish and founded the Louisiana State Bar Immigration Law Section, which she chaired for several years.
BAL Senior Associate Matt Dillinger spoke about H-1B visas on Friday, March 31, at the Spring Conference of the Texas Chapter of the American Immigration Lawyers Association (AILA). We sat down with Matt to discuss his work on H-1Bs and more.
We will discuss best practices for prepping for the 2024 cap season, new occupational codes used for H-1Bs, and how to handle employees in licensed professions. We will also discuss scenarios that require special considerations and creative legal arguments to successfully gain work authorization approvals.
There is a provision that allows people to extend their H-1B beyond the six-year maximum period if they have an approved immigrant petition but no green card is available. This is especially common for Indian and Chinese nationals for whom priority dates are significantly backlogged. But after the significant advancement of priority dates in 2020, many H-1B employees were no longer clearly eligible for these extensions, as they may have moved employers and thus not been able to file a green card application despite having been current for more than one year. Employees in this situation require a unique approach in order to continue to extend their status.
Many employers believe that when they file a change of employer petition for an employee, they must wait for approval by USCIS. But technically that employee can start working for a new employer as soon as the petition is received by USCIS. In the past, both employers and employees have shied away from doing that because Request for Evidence and denial rates were much higher. However, we are now seeing fewer RFEs and denials, so employers are becoming more comfortable allowing employees to start work before receiving final approvals. The same goes for employees.
Even experienced I-9 people might not know that there are special rules that make it possible to hire on receipt. Also, technically, employers don’t even need the formal USCIS receipt notice. You can submit I-9 paperwork based on the change of employer petition filing, proof of payment and proof of delivery.
I like things to be as clear and concise as possible. My approach is to provide a clear assessment of any risk I see, while also providing practical solutions or strategies, and minimizing the complexity of the situation, so the client feels confident moving forward.
I have always enjoyed learning languages and studying other cultures, so the international aspect of immigration law appealed to me. I find immigration law to be extremely rewarding. I feel good at the end of each day because I get to help my clients, help their employees and employees’ families and, in doing so, I believe I am making the United States a better place.
Matthew Dillinger is a Senior Associate in the Austin office of BAL. His practice focuses on developing and implementing creative strategies to meet the needs of his clients. He has worked with clients from a wide range of industries, including telecommunications, information technology, fintech consulting, higher education and healthcare, Matt believes strongly in pro bono work and has represented pro bono clients in DACA, U visa and asylum cases. In addition, he has served on the Leadership Board of the National Immigrant Justice Center.
BAL Senior Associate Stephen Parker is speaking this week at the American Immigration Lawyers Association (AILA) Texas Chapter Spring Conference on the topics of PERM prevailing wage and pay transparency. We recently sat down with Stephen, who practices at the firm’s Dallas headquarters, for a conversation about trending issues in immigration and his approach to the profession.
I’m now seeing PWDs back that were requested in September 2022 — so that’s about 6-7 months! It’s actually improved a bit recently, but when PWDs get to be more than just six months, the overall process becomes difficult to manage.
It’s due in part to the increased demand for PWDs and volume of requests. One possible reason for significant delays last year is that the DOL Standard Occupational Classification (SOC) codes were put into use in July 2022, an update that was previously delayed due to COVID-19. It might have been taking DOL analysts more time to process PWDs using the new coding system.
There is no way to speed up a PWD. The DOL accepts PWDs and issues them in the order received — first in, first out, without a possibility for expedited requests.
There’s not really a good way to predict upcoming processing times. DOL suffers from a lack of staff and budget issues. They’re at the mercy of bureaucratic funding, so if there’s a government shutdown due to a budget fight, things are going to get much worse.
There are real issues with significantly delayed processing times, like clients’ employees having to leave the U.S. because their green card case is not far enough along or their children aging out of the process.
I’m passionate about getting clients through a very complicated process. That’s what drives me. I’m especially inspired by the stories of the employees of our clients — where they’re from, and their boldness, tenacity, courage and willingness to go through this process because they really want to live in America.
Before coming to BAL I was stressed, dealing with less robust off-the-shelf software solutions that didn’t manage cases. Here at BAL, because of our Cobalt® technology, we’re able to manage a high volume of cases effectively through detailed case management and reporting technology.
I attended a small liberal arts college in Los Angeles, and I got to be friends with a lot of foreign students from all over the world. I loved their stories and getting to know them. After serving in AmeriCorps, I developed an interest in community and law and policy. I decided to become a paralegal first, and it was just by coincidence that the first job I applied to was an immigration firm.
I enjoy the win-win of helping somebody come to the U.S., helping an employer fill a job vacancy — and helping America to grow and become more diverse, interesting and talented.
Stephen Parker is a Senior Associate in the Dallas office of BAL, where he represents multinational corporations in immigration matters, including PERM labor certification, EB immigrant petitions and Adjustment of Status (AOS). He has a background in corporate immigration for the software industry and is an in-demand speaker at AILA conferences, CLEs and university events. Dedicated to pursuing the exceptional in immigration, Stephen assists his clients with retaining top global talent and also provides free legal assistance at citizenship workshops and through BAL’s pro bono committee.
With a new Congress sworn in in January, Washington has seen a power shift and leadership changes that will shape the immigration debate in the coming year. The Republican-led House of Representatives will focus on immigration oversight and challenges at the border; however, policy changes will continue to come primarily from the executive branch. The focus of executive agencies will be not only the border but also high-skilled immigration programs such as the H-1B program. The judicial branch, meanwhile, will continue to play its role in reviewing the legality of immigration policy changes, including a high-profile enforcement case that could have far-reaching implications.
Read BAL’s full report on the 2023 U.S. immigration landscape here.
Dallas, Oct. 18, 2022 – BAL, the award-winning global immigration law firm, has launched BAL Community, an interactive platform and community space for corporate HR professionals. BAL Community empowers in-house immigration, mobility and talent acquisition professionals to benchmark, share best practices and collaborate with peers and industry leaders.
“One thing we hear over and over from the business community, particularly those with small and midsize programs, is that they need better tools to meet the diverse demands of running an in-house immigration program,” said Jeremy Fudge, BAL’s Managing Partner. “We created BAL Community with the input of the country’s top in-house experts to be an invaluable resource for every type of immigration program.”
In-house immigration professionals are challenged with juggling multiple responsibilities, including staying abreast of industry standards, analyzing data, communicating with various stakeholder groups, and tracking day-to-day policy developments.
“In-house immigration professionals need modern tools to succeed in their jobs,” Jeremy added. “BAL Community is the only professional network dedicated to providing immigration professionals the intelligence, insights and access they need to serve their businesses.”
Membership in BAL Community includes:
• Weekly benchmarking on topics driven by in-house professionals. • Analysis of best practices for corporate immigration programs. • Exclusive events with government and industry leaders. • Small focus group sessions to engage with peers on complex program issues. • Opportunities to provide feedback to government agencies.
In-house professionals who contributed to the development of BAL Community emphasized the need for brevity and clarity. Taking this input to heart, we designed BAL Community to fit within the busy schedules of in-house immigration professionals.
“BAL is a leader in our industry because of our oneBAL culture of teamwork and information-sharing that ensures every client benefits from all of the firm’s resources, expertise and knowledge,” said Frieda Garcia, a Partner who serves on the firm’s management committee. “We are excited to bring that same culture to BAL Community, allowing in-house professionals to connect with and learn from the best in the industry.”
Last year, BAL launched Advisor, the industry’s most comprehensive multimedia platform that delivers real-time immigration content and analysis to foreign nationals. Advisor has become an essential tool for companies to cascade information to their employees. While Advisor will continue to provide content for foreign nationals, BAL Community is dedicated to producing curated content for in-house professionals.
To learn more about BAL Community and to join, please visit: https://community.bal.com/
About Berry Appleman & Leiden LLP (BAL) BAL, the world’s leading corporate immigration law firm, is singularly focused on meeting the immigration challenges of corporate clients around the world in ways that make immigration more strategic and enable businesses to be more successful. Established in 1980, BAL has consistently provided immigration expertise, people-centered client services, and leading technology innovation. In 2018, BAL entered into a first-of-its-kind strategic alliance with Deloitte U.K. to create the world’s first global immigration service delivery model.
BAL’s proprietary Cobalt® digital immigration services platform won the 2020 CODiE Award for Best Legal Tech Product, the prestigious CIO100 award for Innovative Use of Intelligent Automation in Immigration Services, and Legalweek’s Most Innovative Law Firm Operations Team of 2021. BAL has ranked #1 on multiple industry rankings for diversity, equity and inclusion, including the #1 Law Firm for Women by the National Law Journal four years in a row (2019-2022), #1 on the Diversity Scorecard by The American Lawyer (2020 and 2021), and #1 on Law360’s Diversity Snapshot for the three years running (2020-2022). BAL won The Best Company for Diversity, the Best HR Team, and the Best Company for Career Growth by Comparably, based solely on employee ratings. The Dallas Business Journal named BAL one of only a handful of the 2022 Best Places to Work based exclusively on employee feedback.
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174