Immigration and Labor Options in Construction

This blog was written and produced by L.J. D’Arrigo, Co-Leader of the Harris Beach Immigration Law Practice Group. Reach him at ldarrigo@HarrisBeach.com and 518-701-2770. Read additional perspectives from L.J. and the immigration team on their blog, “Knowledge Has No Borders.”

The need for a reliable and legal workforce is of utmost importance to the construction industry and collateral seasonal businesses, including landscape companies and construction supply businesses. I hear from these seasonal employers every day about how difficult it is to find reliable U.S. workers to fill positions as roofers, framers, laborers, painters, and other lower-skilled positions. The reality is that American workers are not interested in seasonal work, let alone work requiring intense manual labor. It is a myth that the only reason why any employer would hire foreign workers is because it’s “cheap labor.” There is absolutely no financial incentive for any employer to hire a foreign worker over a reliable U.S. worker due to the legal and government filing fees, as well as prevailing wage requirements, that apply to foreign workers. So why would any seasonal employer hire a foreign worker over an American worker? Because they cannot find a U.S. worker who will stay longer than 1-2 days. Most domestic workers want permanent jobs, not seasonal ones. We also face a “generational crisis” as our youth no longer have to work summer jobs, nor are they interested in hard manual labor. Internship opportunities or other options are taking them out of the seasonal workforce.

There is no perfect visa program to alleviate the burdens of labor shortages during a strong economy with historic low unemployment rates, but the H-2B program is still a viable and workable solution. The H-2B visa allows U.S. employers who anticipate a shortage of domestic workers to bring foreign workers to the U.S. to perform labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing foreign workers to the U.S. If the employer meets the requirements, they may bring a foreign worker into the U.S. for a maximum of 10 months. During that time, the nonimmigrant worker is guaranteed certain rights.

Requirements for an H-2B Employer

1. Employers are required to meet the following requirements in order to file for an H-2B visa:
   The position must be temporary (seasonal, intermittent, peak load, one-time occurrence), and the employer anticipates a shortage of domestic workers.
2. The job must be for less than one year (usually 10 months).
3. There must be no qualified/willing U.S. workers available.
4. The employer must agree to pay H-2B workers in accordance with the government’s prevailing wage for the area of employment.
5. Employer must pay inbound and outbound transportation and subsistence expenses and should reimburse workers for these expenses within the first week of work.
6. Employer must reimburse workers for visa-related expenses at the U.S. Consulate in their home country, including recruiter/agent fees and consular processing visa fees. These expenses should be reimbursed within the first week of work.
7. Employers must provide Workers’ Compensation Insurance.
8. Employer must pay all workers the required Prevailing Wage Rate plus overtime for over 40 hours and guarantee at least 35 hours per week.
9. While the employer is not required to provide housing to H-2B workers, the employer should arrange for housing in advance of the workers’ arrival. The workers are responsible for all housing costs and related expenses.
10. Employers must withhold tax and pay all applicable state, federal, and social security taxes for H-2B workers.
11. Before employing H-2B workers, an employer must make an active effort to recruit U.S. workers.

Beyond the seasonal labor options, there are permanent labor solutions for construction laborers and related positions through the U.S. Department of Labor’s PERM Labor Certification program. This is essentially an H-2B program on steroids and mirrors many of the filing and recruitment steps above. For many years, this option was not practical because of very long waiting periods for this particular green card category. However, these wait times have decreased sufficiently to make this a viable option. If timed carefully, a seasonal employer can continue to bring its H-2B workers into the U.S. and at the same time process applications for permanent resident status for these workers. In some cases, after a couple more seasons on the H-2B, these workers would have independent work authorization through the pending green card process and could remain in the U.S. without further H-2B authorization. The green card process can take two years to fully complete, but workers would be able to remain in the U.S. for a significant portion of this time.

Harris Beach PLLC maintains the largest attorney-managed temporary and seasonal visa practices in the country and provides guidance to the construction industry and collateral seasonal businesses on compliance issues. We facilitate the processing of more than 5,000 temporary workers through the H-2B and H-2A programs each season. Please do not hesitate to reach out if you need assistance navigating the H-2B or PERM programs.

This material has been prepared for general, informational purposes only and is not intended to provide, and should not be relied on for, tax, legal, or accounting advice. Should you require any such advice, please contact us directly. The information contained herein does not create, and your review or use of the information does not constitute an accountant-client relationship.