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S.D. employers use immigrant sponsorships to fill workplace gaps

South Dakota showed the lowest unemployment rate of any state at 2.9 percent in August of 2016, according to the Bureau of Labor Statistics.  Sioux Falls boasted the lowest metro area unemployment rate in the country in at 2.1 percent.  This is great news for South Dakota employees, but brings recruiting challenges for employers.  There are simply not enough workers to fill certain positions. 

South Dakota employers increasingly rely on two popular programs to fill seasonal or other temporary labor needs: the H-2A program for agricultural labor, and the H-2B program for non-agricultural labor.  This article focuses on the H-2B program for seasonal, non-agricultural labor.

The H-2B program is very popular in construction and tourism industries, but can work for any industry with seasonal or temporary needs, such as education, retail, entertainment, sports or manufacturing.  Under the H-2B program, seasonal workers can be employed up to 9 months at a time, and the same worker generally can return annually for up to three years. 

In order to bring in H-2B employees, the H-2B employer must show a lack of qualified U.S. workers.  This is done by advertising and showing insufficient qualified workers applied for the position.  Most H-2B employers must advertise by placing two Sunday advertisements in the local newspaper and posting the job with the state workforce agency for 30 days.

REGULATIONS

An H-2B employer must follow strict wage requirements.  Most importantly, it must pay its H-2B employees at least the “prevailing wage” for the position.  The prevailing wage is calculated by the Department of Labor after the employer submits a prevailing wage determination request online.  The H-2B employer also must pay its U.S. workers the same wage as its H-2B workers, to ensure that the immigrant workers and U.S. workers in the same position are treated equally.

There is a statutory numerical limit, or “cap,” on the total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30).  On March 16, 2017, USCIS announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for FY 2017. 

A provision to the most recent Congress-approved federal spending bill could allow more H-2B visas each year.  The bill gives the Secretary of Homeland Security, in consultation with the Secretary of Labor, the authority to nearly double the H-2B cap when it's determined there is an economic need.  It has not been announced whether the cap will be increased for fiscal year 2017 or 2018.

Based on the current cap and the growing demand for these visas, an H-2B employer should begin the application process approximately 9 months before the seasonal employees are needed.  The first step in the process is to determine whether the program is a good fit for the employer, and if so, to request the prevailing wage from the Department of Labor.  These initial steps are usually a low investment and help the employer determine if it wants to proceed with the H-2B application.

The H-2B program’s growing popularity shows that it can be a very successful program for employers with seasonal needs who understand and comply with the H-2B regulations. 

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