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The government is on the verge of shutting down. The Biden administration announces new immigration measures, including extended Employment Authorization Documents. And analysis from the head of BAL’s Government Strategies team on why immigration is important to national security and global competitiveness.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
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.
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A proposed H-1B regulation is under White House Review. The October Visa Bulletin shows advancement in key employment-based categories. And analysis from the head of BAL’s Government Strategies team on why comprehensive immigration reform has proved so challenging.
If your business is facing seasonal or other short-term staffing needs, or economic uncertainty is impacting your permanent hiring decisions, H-2 visas for temporary workers may be the answer.
The need for labor is considered to be temporary if it is:
There are two H-2 visa options to consider based on your industry.
H-2A visas are appropriate for any agriculture-related industry requiring temporary or seasonal help and allow workers to remain in the U.S. for one year, but employers can request extensions annually for up to three years. At the end of three years, the worker must leave the U.S. before seeking readmission. There are no government caps on the number of H-2A visas allowed each year.
H-2B visas are used for many industries and allow workers to remain in the U.S. for up to three years, and, like the H-2A visa, the worker must leave the U.S. before seeking readmission. Also, the government caps the number of H-2B visas allowed each year, and eligible workers are selected via a lottery.
Both types of H-2 visa holders are entitled to prevailing wages and standards of employment, worker’s compensation benefits, as well as certain housing and education benefits for them and their families. The spouse and children under 21 years of age of H-2 visa holders may seek admission on H-4 visas but are not eligible for employment.
To obtain either type of H-2 visa, an employer must show that:
Meeting these requirements is integrated into the application process for both types of H-2 visas.
The H-2A process should be started 60 to 75 calendar days before the job’s start date. The process involves these basic steps:
The H2-B process should be started at least 150 calendar days before the job’s start date. This visa type’s process includes all of the above but also requires employers to first obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center (NPWC) before applying for temporary labor certification. The DOL determines the prevailing wage for the particular role and the employer must agree to pay at least that wage. Employers for H-2B workers must include the DOL’s prevailing wage determination in their application for temporary labor certification.
While we have simplified launching a temporary workers program, employers often face significant challenges, including:
BAL’s experienced immigration attorneys Ashley Foret Dees and Jeff Joseph can provide straightforward counsel on successfully navigating the H-2 visa processes. Get the temporary help your business needs on your terms, from assessing candidates to managing the documentation and responding to government agencies, ensuring compliance and reducing risk.
A federal judge rules against Deferred Action for Childhood Arrivals (DACA). The State Department announces it has issued all available Diversity Visas. And we sit down with Frieda Garcia, BAL’s new managing partner.
SAN FRANCISCO and DALLAS, September 13, 2023 — BAL, the global corporate immigration law firm helping businesses and individuals navigate complex immigration issues, announces today the appointment of Frieda Garcia as Managing Partner. Frieda is the first woman and Latina to serve in this role and the third managing partner in BAL’s 43-year history. In her new role, Frieda oversees all aspects of the firm’s legal operations and ensures that teams across the firm’s 13 offices are working together seamlessly to deliver best-in-class immigration services while building on the firm’s oneBAL culture. She continues to lead efforts to attract new clients and deliver exceptional service to the firm’s clients.
“This achievement is a significant personal and professional milestone for me. I knew early on that the foundation of the open-door policy set by BAL’s s founding partners would allow me to grow and shine as long as I kept asking questions, raising my hand to help manage complex issues and finding creative ways to enhance our firm’s culture,” said Frieda. “My journey to reach this position has been defined by cultivating meaningful relationships, hard work and sacrifice, as well as unique challenges that working mothers face while building their careers. With my position, I hope to inspire and pave the way for others like me to continue BAL’s legacy of powering human achievement.”
“For over two decades, Frieda has been a distinguished leader and mentor at BAL, and she has truly exemplified our commitment to pursue the exceptional,” said Jeremy Fudge, CEO at BAL. “Frieda’s strong character, incredible legal acumen, steady presence and grace will enable BAL to continue to make a positive difference in people’s lives.”
Additionally, in celebration of Hispanic Heritage Month, BAL is putting a spotlight on Frieda’s 22-year career at the firm. Her integrity and energy became vital to its growth and culture, and she has been instrumental in spearheading the firm’s most prominent immigration programs in the technology, finance and travel service industries. Since she started at BAL in 2001, BAL has grown from two offices to 13, a testament to her contributions to the firm’s growth and success.
Frieda’s life and career have been profoundly shaped by her family’s personal immigration journey. She was born in the U.S., but at a very young age, moved back to El Salvador with her parents. After losing her mother to cancer at the age of four and spending several years in a war-torn country, Frieda’s father obtained a work visa and moved the family back to the U.S. when she was eight. Driven by her experiences, Frieda pursued higher education at the University of California, Davis, and the University of San Francisco School of Law. It was during this time that she discovered her passion for immigration law, and she began her career assisting asylum applicants and defending deportation cases.
Among her many awards and honors, Frieda has been recognized by Best Lawyers every year since 2016. Last year, she won a Corporate Counsel’s 2022 Women, Influence & Power in Law Award for Thought Leadership. Frieda and her two daughters are members of the National Charity League, a group of mothers and daughters committed to community service, leadership development and cultural experiences. Their hands-on philanthropic engagement spans 200 hours per year, and in recognition of their dedication and time, her daughters have both earned The President’s Volunteer Service Award.
Frieda’s appointment is a significant achievement for Latinas in the legal field, showcasing BAL’s unwavering commitment to fostering diversity, equity and inclusion within the industry. The NALP reports Black and Hispanic women are the most underrepresented in partner ranks, and in 2022, Latina women accounted for less than 1% of all law partners. BAL takes immense pride in its commitment to diversity and understands that it’s a key strength that enables the firm to deliver exceptional service to clients. Recognized as the most diverse law firm, people of color at BAL represent 63% of employees and 54% of attorneys. Notably, 62% of BAL’s equity partners are people of color.
About BAL
Established in 1980, BAL powers human achievement through immigration expertise, people-centered client services and innovative technology. BAL, with 13 offices across the United States and global coverage in more than 185 countries around the world, operates as a single entity through its oneBAL culture — a uniquely holistic approach, intentionally structured as one team, one brand, one P&L, one standard of excellence and one unifying technology. This united approach enables the firm to deliver the highest level of knowledge, insights and resources from across the entire organization. At BAL, we pursue the exceptional. To learn more, visit bal.com.
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
A policy that allows visa applicants more time to book appointments is coming to an end. The State Department’s forthcoming domestic visa renewal pilot is expected to help reduce workloads abroad. And a look at the benefits and drawbacks of E-Verify.