Seasonal Jobs Visa/H-2B Visa/ For US Based Employers and Foreign workers
The Department of Labor/DOL/ estimates that half of the jobs created in the United States will require no more than a high school education and the annual need of lower skilled foreign workers is over 500,000.To alleviate the challenge, the 2016 DOL Appropriations Act, the Immigration and National Act, the Regulation of Department of Home land Security directly or indirectly allows for employment of H-2B workers.
H-2B Visa was created to allow skilled and unskilled workers to come to USA temporarily to fill non-agricultural jobs for which USA workers are in short supply .A total of 66,000 of an annual quota of H-2B visa petitions may be approved during the government fiscal year. Recent law divided the fiscal year into two so that no more than 33,000 visas can be passed out during the first six months. This is an opportunity which also enable the foreign workers to work legally in USA for short period of time and to bring his/her spouse and minor children. But, the spouse and minor children may not be allowed work unless they qualify for a work visa in their own right.
Requirements and Processes for Obtaining H-2B Job and Workers
The major requirements for obtaining H-2B job and workers are the followings.
1. Job offer from a USA Employer
A foreign worker needs a specific job offer from a USA employer to get an H-2B visa. The employer will have to act as the petitioner in getting the prospect workers H-2B visa. The petitioner may be company or an individual.
1.1. Temporary Job
The job offered to the prospect worker cannot be for any position .It needs to meet the legal definition of temporary in which the period of the employer's need for services should be one year or less in general. But, the duration of employment may be extended up to three years in some circumstances. In addition, the employer's need must be either one time, seasonal, based on a peak load need, or based on intermittent need. The job may not be continuous and permanent. One-time occurrence is appropriate if the petitioner will require temporary services for a single event or project such as construction of an office building, industrial facility, bridge, or a ship, which will have a definable end point but may require more than one year to complete. It may be possible where for instance to supplement an existing USA employee and to replace a permanent employee who was injured.
Seasonal needs entails services or labor that is tied to a season of the year by an event or pattern and is of a recurring nature. Need is considered seasonal if the business operations is quiet often completely shut down or do not employ workers at all in that occupation for some part of the year. It may also arise from a predictable cyclical budget constraint or a holiday season. The employer must state the off- season which is the periodical time during in which it does not need the services or labor; and off-season periods of unemployment that are unpredictable ones are unacceptable. Summer life guards in the coastal regions and dining staff at Cape Cod resorts for the summer season as well as workers at a ski resort would be a good example of seasonal needs.
Peak load need covers situations where the petitioner needs to supplement regular, permanent staff who ordinarily provide the services or labor with a temporary workers due to a seasonal or short-term demand. In short it applies when employers need is above and beyond the existing workers employed in that occupation .It often occur around tourist or holiday seasons ,for instance when employers bring in additional workers for production of toys during the Christmas season and extra workers will be made go afterwards.
Intermittent needs are ones where the employer needs workers occasionally for short periods ,but not for long enough to justify hiring someone permanently .The petitioner must demonstrate that it has not employed permanent or full -time workers to perform the services or labor ,however, occasionally needs temporary workers to perform services or labor for short periods. The employment of foreigner actor to reshoot movie scenes that have been previously filmed and to produce sport clothes and shoes at major sport event are the typical examples of such need.
1.2 Types of Temporary Works
The types of H-2B visas works includes hospitality, hotel, motel, chefs, theme parks, ticket sales, cruise ships, construction, maintenance, janitorial, ski resorts, landscaping, water parks, security, ride operators, ware house, housekeepers, retail stores, child care, etc. However, these sets of jobs do not automatically amounts to be temporary jobs without case-by-case analysis.
3. Full-time employment with employer
The H-2B job offered must be full time for which temporary labor certification may be issued.In other words, part time employment does not qualify for H-2B certification.
4. No sufficient USA Workers
To obtain an H-2B visa, there must be no unemployed USA workers willing or able to do particular job at the place where the foreign worker is to perform the work. The prospective employer must successfully complete a temporary labor certification to prove the unavailability of USA workers and that employment of H-2B workers will not adversely affect the wages and /or working of conditions similarly employed USA workers.
5. Evidence for Temporary Needs
The employer has a duty to establish the facts that are necessary to prove that the work is a temporary job. Description of the employers business history and activities ( i.e primary products or services ) and schedule of operations throughout the year; an explanation regarding why the nature of the employer's job opportunity and number of foreign workers being requested for certification reflection in a temporary need; an explanation regarding how the request for temporary labor certification is a one-time occurrence ,seasonal ,peak load ,intermittent need ;and if applicable ,a statement justifying the increase or decrease in the number of H-2B positions being requested for certification from the previous year. It also includes specific documents of summarized monthly payroll records for a minimum of one previous calendar that identify ,for each month and separately for full time permanent and temporary employment in the requested occupation ,the total numbers of workers employed ,and the total hours worked; annualized and /or multi-year work contracts or work agreements, invoices, or client letters of intent ,with a clear statement of the specific commencement and end date of the project or contract and other evidences showing the number of workers of the industry.
6. Time of Application
Petitions should be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment begin, because the petition processing and visa issuance may not be completed before work is to begin.
7 .Labor Certification
Employers who are seeking to employ temporary H-2B workers must apply for Temporary Employment Certification from USA Department of Labor before being able to file H-2B petition with USA Citizenship and Immigration Services (USCIS). An employer may submit a request for multiple unnamed foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment during the same period of employment. Certification is issued to the employer, not to the worker, and is not transferable from one employer to another or one worker to another. The labor certification is valid for the period of employment indicated in the form ETA-750.But, the validity period cannot exceed 364 days. The employer may apply for re-certification of labor certification for additional two years by justifying the reasons for renewal request. However, the previous worker to be eligible for the renewed job, a foreign national must remain physically present outside USA for at least three months. Certification is issued only for a specific job opportunity, number of workers, and for a specific employment period.
8. Process of H-2B Labor Certification
There are many steps in the process of H-2B Labor Certification. The first step is that the employer must submit request for H-2B registration from the Department of labor by providing its needs of temporary workers with sufficient facts and evidences. If the Certification Officer approves the registration, he/ she will issue a Notice of Decision and send the employer copy of the approved ETA Form 9155.If the employer is denied for registration, he/she may request administrative review or appeal or may file a new H-2B registration in some exceptional cases.
The second step is to request and obtain a prevailing wage determination (PWD) from OFLC National Prevailing Wage Center (NPWC) before filing a job order to the State Workforce Agency (SWA) serving the area of intended employment. No wage determination permits an employer to pay a wage lower than the highest wage required by any applicable Federal, State, or local wage law.
The third step is to apply for H-2B workers and request for job order from SWA by submitting all facts about the need of workers, job and the industry. The Certification officer in its notice of acceptance directs the employer to engage in positive recruitment of USA workers. The fourth step is to engage in positive recruitment of all qualified USA workers by promoting the vacancy through the local newspaper ads or by contacting the former eligible USA employeesor by other means. The employer must prepare a report about the recruitment by listing down all the efforts and the results there of in particular the unavailability of USA workers. The fifth step is after the Certification Officer determined that the employer had met all the regulatory requirements, he/she grants a completed Labor Certification to the employer.
9. Citizenship to the Designated Country
A foreign worker must either come from a participating country or must qualify for an exceptional cases. There are lists of H-2B designated countries based on the country's cooperation with respect to the issuance of travel documents for citizens ,and residents of that country are subject to a final order of removal from the United States; the number of final and executed or unexecuted USA orders of removal against the citizens and residents of the country ;and such other factors as may serve the USA interest .Ethiopia is one some of the eligible designated and participating countries based on the above factors. For a citizen of non-eligible/participating countries to qualify for an exceptional reasons, a person may be allowed H-2B visa where a worker with the required skills is not available from among foreign workers from participating countries; the person has been previously admitted to the USA in H-2B status; the lack of potential for abuse, fraud, or other harm to the integrity of H-2B visa program and other factors that may serve the USA interest.
10. Related Background
The prospect worker must have the right background and abilities for the job he has been offered. But, H-2B visa can be issued to lower skilled and skilled workers. If the worker's job happens to be for employment as unskilled worker, there are, by definition no specific background qualification for one to meet. Under these circumstances, ones natural abilities may be a consideration, but one does not need to be concerned about having the correct background. On the other hand, if the specific requirement of some jobs requires profession and skill, the prospect workers need to have such types of skill.
11. The Intent of Prospect Employee to Return Home Country
H-2B visas are meant to be temporary; at the time of applying, the worker must intend to return home when the visas expire. If the prospect worker has intention to live permanently in USA, he/she will not be legible for an H-2B visa. One may be asked to produce evidences of property, family and different incentives that prove he will eventually return to his home country.
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Violence against Women Act and its Protection to Spouses, Parents and Children of United States Citizens or Lawful Permanent Residents
America, as the land of immigrants hosted around 40 million foreign-born people in the year 2010 of whom 19 million were women and girls. As the number of immigrants increases, so does the size of the Ethiopian-born population in the United States. While only 10,000 Ethiopians resided in the United States in the 1980s, there were around 178,000 immigrants from Ethiopia living in the United States in the year 2010. Currently, the Ethiopian-born immigrants constitute the United States’ second largest African immigrant groups after Nigeria.
Although there are numerous ways of acquiring lawful permanent resident status in the United States, the majority of Ethiopian immigrants acquired their residency through family reunification, and diversity visa lottery with 52% of the immigrant coming through family-based petitions. A family-based petition would allow spouses, parents, children, either adopted or biological, and siblings of United States Citizens, and in certain instances LPRs to be admitted into the United States and acquire Lawful Permanent Resident status.
Women and children are among certain population groups that often are discriminated against and thus require special attention to avoid exploitation in any part of the world. The exploitation immigrant women and children face is exacerbated by their immigration status. It is the unfortunate truth that foreign-born women and children are vulnerable to abuse and exploitation in different forms. Many of these women and children who come to the United States through family-based petitions or those who are married to a United States citizen or Lawful Permanent Resident could potentially adjust their immigration status but are left at the mercy of their spouses who could exploit their lack of immigration status in the United States.
Immigrant women and children may also be subject to sexual assault within their marriages, although the act is a crime, and is illegal in the United States. However, in countries like Ethiopia where marital rape is not a crime, immigrant women and children are likely unware that the sexual abuse they endure at home is a punishable act. It is also the case that these groups, because of their inability to obtain work permits without the help of their United States Citizen or Lawful Permanent Resident spouse, parent, or child, are forced to engage in the informal labor market where they work as domestic worker, and caretakers, putting themselves at risk for rape, sexual assault, harassment and other forms of sexual violence.
Congress, recognizing the vulnerability of immigrant women in children, enacted the Violence against Women Act (VAWA) as part of the violent crime Act. VAWA was the first federal legislation in the United States specifically designed to curb domestic violence as a way to strengthen the protection available to battered women and children. Congress, through VAWA created a safe route for victims of threat or actual physical, emotional and sexual abuse, social isolation, harassment, and lack of economic resources to be eligible for LPR status, who would otherwise rely on an abusive LPR/USC spouse, parent or child to help them adjust their status to lawful permanent resident.
A VAWA self-petition is a two-step process which starts with an eligible applicant filing a petition that must be approved by Department of Homeland Security United States Citizenship and Immigration Services. Once the application is approved, the applicant will apply for lawful permanent resident status either through adjustment of status in the United States or at a United States embassy or consulate abroad.
The first step in the process is establishing the relationship between the abusive spouse, parent or child and the immigrant and showing the abuse the self-petitioner experienced by filing an I-360 petition. In case of relationship by marriage, a self-petitioner who is currently married with the abusive spouse or a divorced spouse may self-petition for LPR status. The battery must have occurred in the United States unless the abusive spouse is an employee of the United States government or a member of the uniformed services of the United States. The self-petitioner must have entered into the marriage in good faith, not solely for the purpose of obtaining immigration benefits, and have resided with the abusive spouse. In case of a self-petitioner who is currently not married because of bigamy, the spouse needs to believe that she was legally married to the abuser but the marriage was not valid because of the abuser’s valid prior marriage. In case of divorce, the divorce must have occurred within the past two years prior to the self-petition and there must be a connection between the divorce and the battery. Similarly in case of death of the abuser, the death must have occurred within two years prior to filing the petition. Finally, the self-petitioner is required to show that he or she is a person of good moral character. In case of children of the abused spouse or former spouse, they are also eligible for VAWA self-petition even if they, themselves, have not experienced the abuse or are not related to the abuser.
Regarding self-petitioned children of United States citizens and Lawful Permanent Residents, they are required to be unmarried and under the age of 21. They are also required to show that they have resided with the abusive parent and that they are of good moral character if they are above the age of 14.
In case of self-petitioning parent, they must have been the parent of a son or daughter who is a U.S. citizen or Lawful Permanent Resident who have been abused by their US citizen or LPR child. They must have resided with such a child and can provide that they are a person of good moral character.
In a self-petitioning cases filed by a spouse, child, or parent where the abuser has lost or renounced his or her lawful permanent resident or citizenship status within the past two years, the self-petitioningapplicant must demonstrate that the loss of status or renunciation of citizenship is related to an incident of domestic violence. Generally, while a self-petitioner must currently reside in the United States at the time of application, some self-petitioners may file from abroad if the abusive spouse or parent is an employee of the U.S. government; the abusive spouse or parent is a member of the uniformed services; or the abusive spouse or parent has subject the immigrant spouse to battery or extreme cruelty while physically present in the United States.
Once the I-360 is approved, the next step in the process is filing for adjustment of status to that of a Lawful Permanent Resident using the form I-485 if the self-petitioner is in the United States and attending an adjustment of status interview. If the self-petitioner is not in the United States, USCIS will transfer the I-360 approval notice to the Department of State’s National Visa Center so that the applicant may start the consular processing. The time to file the I-485 or for the NVC to contact the self-petitioner is dependent on the immigration status of the abuser. If the abuser is a United States citizen, the self-petitioner can file for adjustment of status either concurrently with the I-1360 or immediately after the I-360 is approved as there are no numerical limitation on the number of Lawful Permanent Resident status available to spouses, children and parents of United States citizens. On the other hand, if the self-petitioner is a spouse or child of a lawful permanent resident, the self-petitioner is required to wait until his or her priority date is current before he or she files for adjustment of status or be contacted by the National Visa Center for the purpose of consular processing.
It is worth noting that there are several reasons that may render a VAWA self-petitioner to be ineligible for permanent residence status or admission to the United States. These may include criminal history of the self-applicant, violation of immigration laws and the likelihood of a public charge.
A VAWA self-applicant may apply for a waiver of inadmissibility for certain criminal acts, including crimes of moral turpitude, prostitution and possession of marijuana which is 30 grams or less. A VAWA self-petitioner may qualify for a special waiver if there is a connection between the crime and the domestic violence.
The majority of immigrants, including battered immigrants are not eligible to become lawful permanent residents if they are likely to become public charges. Unlike in a family immigration petition where the petitioning family member is required to show an income above 125% of the federal poverty guideline, a VAWA self-petitioner is only required to demonstrate during the adjustment of status or consular interview that they will be employed and are not receiving benefit and or that they have other means to support themselves.
Finally, immigrants including battered immigrants may be inadmissible to become lawful permanent residents if they have accrued unlawful presence for over 180 days beyond their lawful stay or for having entered illegally the United States. VAWA self-applicants do not accrue unlawful presence so long as there is a connection between their unlawful presence and the domestic violence they have experienced. It is also the case self-petitioners are able to adjust their status in the United States without the need to consular process in their home countries despite their unlawful entry or overstay.
Finally, once the VAWA self-petition has his or her lawful permanent resident status approved, his or her children in the United States who have been listed as children on the I-360 application may be able to adjust to Lawful Permanent Resident status in the United States. The VAWA self-petitioner may also file for a “follow-to-join” petition to allow his or her children under the age of 21 to receive lawful permanent resident status in the United States.
You may contact attorney Amsale Aberra, the Principal attorney at Amsale Aberra Law PLLC by phone: 206-734-7614 or you may send us your email to: amsale@aberralaw.com
