Common H2B Misconceptions

Companies, such as C. Scott Inc., SILC (Seasonal Immigrant Labor for Contractors), can help business owners learn more about the H2B program and obtain temporary H2B laborers for their businesses. SILC has provided explanations of the common misconceptions about the H2B program.

THE H2B PROGRAM IS ALREADY FULL. The H2B program is not full. The year 2000 official preliminary data used to establish the total number of H2B Visas issued totaled only 44,998 worldwide. The data for year 2001 will come out in October. Yes, many more applications are being received by the DOL; however, the number of actual Visas issued is only 44, 988 - the cap is 66,000.

IMMIGRATION ATTORNEYS KNOW ALL ABOUT THE H2B PROGRAM. The H2B program is very specific and time sensitive. Many green Industry companies have learned the hard way that just because attorneys or immigration attorneys are attorneys, does not necessarily make them able to keep up with the specific laws related to H2B or be able to keep up with this time-sensitive program. Contractors should be sure to speak to references, look at their track record and get a firm price. Many times H2B consultants are much better equipped to handle the H2B program.

THE H2B PROGRAM CAN BE CHEAP. One attorney advertises that for $1,200 the firm will provide everything necessary to be in the H2B program; however, they only send the blank forms that the government would have sent for free or that could have been pulled from the Internet. Again, check their references, and look at several H2B providers.

THE H2B PROGRAM CAN BE DONE WITHOUT PROFESSIONAL HELP. The DOL estimates that about 2 percent of the applications from individual companies are approved. The program involves the State Employment Security Agency (State Labor Department), the DOL, the United States Department of Justice (Immigration and Naturalization Services - INS) and the United States Department of State (US Consulates), and each agency treats the program differently. Companies that are able to get certified after years of trying eventually hit "a bump in the road" and are then denied again. The Code of Federal Regulations and the General Administrative Letters, which describe how the law is to be administered, are very specific; if someone is not very familiar with the law, they cannot be certified year after year.

THE U.S. GOVERNMENT WILL DO THEIR PART TIMELY AND CORRECTLY. Many times the government offices are understaffed and under-motivated. Each H2B case has to be monitored for timely delivery. The government often makes errors and bad decisions. The process cannot begin (by law) before 120 days prior to the need for the workers, so every day is very important.

WE CAN BRING TRAINED WORKERS. H2B workers typically have to have zero education and zero experience for jobs to qualify for H2B status. If the person is trained, it will drive the pay of the worker up to prevailing wage for a skilled worker, which is typically too high for the green industry.

THE WORKER CAN ONLY STAY FOR A TOTAL OF THREE YEARS. H2B workers cannot stay on any single Visa for a period of three years. The H2B Visas are seasonal, and each season begins a new three-year period. Some H2B workers have been on H2B Visas for 10 years (10 different seasons).

EVERY RECRUIT/WORKER WILL RECEIVE AN H2B VISA ONCE YOUR COMPANY IS APPROVED. Every case (person) is different. The recruits are subject to the Classes of Aliens Ineligible to Receive Visas portion of the Immigration and Nationality Act, 8 U.S.C. 1001 et. Seq., as amended by Public law 101-549 of Nov. 29, 1990; which outlines all the reasons a person may be denied a Visa. Typically, the workers denied have been in trouble with the INS for illegal entry and immigration violations. The recruits will often be less than honest with the company recruiter as to whether they have been in trouble before.

PROCESSING OF THE H2B VISAS IS VERY EASY AND CHEAP. Beware of offers to process Visas for your company. Only deal with a reputable company. If someone is selling ($1,000 to $2,000 each) your Visas that are not used, you are liable and can be fined or imprisoned for trafficking illegal aliens. If the recruits/workers are paying more than $125 or less than $75, there is a problem.

MEXICAN RECRUITS/WORKERS HAVE TO HAVE DONE MEXICAN MILITARY SERVICE TO GET A VISA. Mexican workers do not need to have Mexican military service to get a Visa. H2B providers who also recruit workers will use the military excuse to prevent you from recruiting the worker you personally choose. Make sure the H2B provider you use knows how to get your recruits/workers Mexican passports without them needing prior Mexican military service.

ONCE THE WORKER HAS A VISA, HE OR SHE WILL GET INTO THE UNITED STATES. The United States Border Patrol can cancel the H2B work Visa if there is reason to believe the worker is in violation of U.S. law. A worker can receive an H2B Visa, and the Border Patrol can find something in the alien’s record that the US Department of State (US Consulate) did not see.

ONCE THE WORKER ARRIVES, HE OR SHE CAN LEAVE YOUR COMPANY. The worker is only entitled to work for your company. The Visa is made out to the worker and the company. If the worker leaves your employ, you can cancel the Visa with prejudice (often this is cancellation for life).