Despite an unemployment rate that is stubbornly stuck above 7 percent, some business owners find it tough to find and keep good employees.
One of the types of businesses that struggles with the employment problem the most is landscaping. During the season the hours are long, the work is hard and the conditions are harsh. Out of season, there’s little work to be had.
Josh Hickam is all too familiar with the labor tribulations in the landscaping business. He’s owned and operated Altered Grounds Outdoor Services, LLC in Pontoon Beach for nine years. Hickam said the first eight years were plagued by employee turnover. In fact, he said, there’s only one worker who has been with him since the beginning.
While struggling with the chaotic labor situation, he said, he happened to hire an American citizen who had immigrated from Guatemala. It was then that he discovered the H-2B visa program and a solution to his problem.
“He did a really good job for me,” Hickam said, “and he explained the whole H-2B process to me. I found myself an immigration lawyer and here we are.”
The H-2B visa program allows noncitizens to come to the United States to perform temporary or seasonal work that is nonagricultural if persons capable of performing such a service or labor cannot be found in this country. Up to 66,000 new visas are available each year in this category.
To qualify, an employer’s need must be temporary. H-2B visas are only authorized if the employer can demonstrate a temporary need, that is, less than one year, and that the need is a one-time occurrence, a seasonal need, a peak load need or an intermittent need. The employer cannot use H-2B visa labor for permanent and long-term labor needs.
And, the employee’s intent must be temporary. The nonimmigrant worker must intend to return to his or her country upon expiration of the authorized stay. In fact, the worker may be required to prove ties to his or her home country.
The attorney Hickam turned to for help was Suzanne Brown of the Law Offices of Suzanne Brown, P.C. in St. Louis. Brown is recognized as one of the foremost immigration attorneys in metro St. Louis. Brown led Hickam through the complicated, multi-stepped process involved in becoming an H-2B employer.
The first step, according to Brown, is to get the U.S. Department of Labor to make a prevailing wage determination for the type of work the employer is offering and the area of employment. Step two, said Brown, is to register and get the job posted with the Illinois Department of Employment Security, so that American citizens who are looking for jobs are aware of it. The employer also has to advertise the job opening in the newspaper. In essence, Brown said, the employer has to be able to show that it made a good faith effort to find qualified workers who are American citizens.
Once the employer has completed those steps, said Brown, they have to go back to the U.S. Department of Labor and request certification for a specific number of H-2B visa employees.
“Let’s say that somebody needs seven workers and, despite good faith recruitment efforts, they’ve only found two U.S. citizens who are willing and able to fill the job,” Brown said. “The Labor Department will certify five positions out of the seven for foreign workers. Once the Labor Department has done the certification, then the employer has to apply to U.S. Citizenship and Immigration Services. And then, once the immigration service reviews the application, determines that it meets the qualifications, and approves it for visa employment, it gets sent to the U.S. Department of State. Each individual has to qualify individually for a visa,” Brown added, “meaning that they’re not otherwise excludable from the United States. They don’t have a criminal record; they haven’t committed fraud, they haven’t committed immigration violations in the past, etc.”
Obviously, getting to the point where an employer can actually hire H-2B workers is a long and arduous process. Hickam started in September in hopes of having employees by March 1.
Once the employer is approved, he can either simply take whomever is sent their way by the immigration service or they can request specific workers from the H-2B approved list. Hickam relies on his Guatemalan-American employee to help select friends and family who will be good workers.
While it’s up to the individual to get to the employment, the employer has to assist with finding safe and secure housing for them. The employee is also responsible for their travel home at the end of the season unless the employer dismisses them early.
Hickam said he’s been very happy with the workers he’s employed through the H-2B visa program and he plans to continue.
“It’s been a learning experience to say the least,” Hickam said. “There are definitely some obstacles with the language barrier and all the approvals but I’m looking forward to next year. It will run a lot smoother. I’ll have a year of experience with it and I’ll have a better idea of what to expect.”