Trump and The H-2 Visa

News sources are reporting that Donald Trump has hired seventy-eight  temporary foreign employees to work at his Mar-a-Lago Club in Pam Beach, Florida. Critics  are claiming that he employs a double standard as one of his main campaign themes is that he plans to bring jobs back to the United States. 

It is interesting to consider this issue as he is petitioning for these workers under the H-2B visa program, “Temporary Non-Agricultural Worker Visa.”  This visa exists so that employers who have difficulty finding workers for seasonal employment.  United States Customs and Immigration Service’s (“USCIS”) website lays out the requirements for what types of jobs qualify under the program: 

To qualify for H-2B non-immigrant classification, the petitioner must establish that:

1) There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2) Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3) Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):

• One-time occurrence or Seasonal need or Peakload need or Intermittent need. 

In addition to demonstrating these requirements an employer has to file a Labor Certification Application (LCA) and advertise the position locally so that American workers have the opportunity to apply for the position.  The employer also has to keep records of its interviews of American workers and has to maintain records of interviews and explanations as to why US workers were not hired if requested. 

The requirements of the visa are designed so that an employer pays the employee the prevailing wage for the position, which in theory protects American workers.    Mr. Trump has claimed that he cannot find workers to work in the positions he needs filled, while others have claimed that he underpays the employees he hires despite the rules of the program.  

There are consequences for employers who violate the terms of this visa program, but this blogger has not found any reports that the Department of Labor or USCIS has taken any action against the Club for violating the terms of the program.  In the meantime, the debate about the overhaul of the immigration laws of the United States continues.  

Employers interested in the H-2 visa program are encouraged to consult with an experienced attorney with any questions.  This blog is for informational purposes only and is not legal advice.  

Australians and The E-3 Visa

The E-3 visa is available to Australians who have an offer of employment from a company in the United States that wishes to employ them.  The visa is similar in many ways to the H-1B visa in that the employment has to be for a specialty occupation. According to USCIS’s website, in order to be a specialty occupation, the job must meet one of the following criteria:

1)         A bachelor’s degree or higher or its equivalent is the minimum entry level requirement for the position;

2)         The degree required is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree;

3)         The employer normally requires a degree or its equivalent for the position;

4)         The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher degree.

In order for the employee to accept the position, the beneficiary must meet one of the following requirements:

1)      Hold a U.S. Bachelor’s Degree or higher that is required for the position;

2)      Hold a foreign degree that is equivalent to a U.S. Bachelor’s Degree  required for the position;

3)      Hold an unrestricted state license, or certification that authorizes you to practice the specialty occupation and be engaged in the state of intended employment;

4)      Have education or training or progressively responsible experience in the specialty occupation that is the equivalent to the completion of such a degree.

The sponsoring company must also file an approved form ETA-9035, Labor Condition Certification (LCA, ) and Form I-129 "Petition for a non-Immigrant Worker" with USCIS. There are exceptions to this method of filing however. Under certain circumstances, a prospective employee currently working or living in the United State under a status other than E-3 may be able to accwpt employmnent under the E-3 visa. 

A petitioner employer may file an LCA for the prospective employee and upon approval request that the employee beneficiary apply for an E-3 visa on the Department of State's website and then follow up with the scheduling of an appointment for an interview at a consular post outside of the United States.  Depending upon the circumstances, this method may allow an employer to quickly hire a prospective employee, thus saving the time and expense often required to recruit and hire an employee who is qualified under this visa.  

Each circumstance is different so results will differ.   Contact an experienced attorney with any questions as the above is informational only and should not be construed a legal advice.