Peakload Construction Workers
|
Peakload Construction Workers Despite
the recent downturn in the U.S. high tech economy, employers in most
other industries are faced with the daunting task of securing enough
qualified skilled and unskilled laborers in an ever-shrinking U.S.
labor pool. Construction
companies historically have recurring short-term seasonal, peakload or
event-based demands for additional workers.
Request Free Consultation. A nonimmigrant classification (temporary “work permit”) available to all types of employers, regardless of industry, is the H-2B classification. This classification is used for a foreign laborer (or usually large groups of laborers—e.g. hundreds) coming temporarily to the United States to perform nonagricultural temporary service or labor, in the event U.S. workers capable of performing such service or labor cannot be found. The
U.S. Immigration & Naturalization Service (“INS”)
grants the H-2B status. However, the employer must first undergo a
U.S. Department of Labor (DOL) process known as "temporary labor
certification" to show that no qualified U.S. workers are
available. The petitioning employer may apply for as many workers as
it needs (in some instances, hundreds). Examples
of H-2B Occupations:
The petitioning employer must show the DOL that employment of foreign workers will not adversely affect the wages and working conditions of similarly employed workers in the United States. To be eligible to sponsor H-2B workers, the employer must demonstrate to the DOL that its need for the type of duties to be performed by the foreign worker(s) does not exceed one year and the need fits into one of the four following categories:
Overall,
the H-2B application process usually takes 90-120 days to complete.
However, some states have quicker processing times than others and
certain occupations such as boilermakers have special procedures for
obtaining expedited approval. If the labor certification is granted by
the U.S. DOL, the employer then is eligible to file a petition with
the INS and thereafter, the U.S. Consulate or Embassy in the country
where the foreign worker or group resides. There
are special procedures for obtaining H-2B visas for construction
workers. While all employers must undergo the temporary labor
certification process, U. S. employers engaged in construction and
seeking the services of ten or more foreign workers in the same
occupation must contact local unions representing construction workers
in the same or substantially equivalent job classification.
The B-1 Option Perhaps
a very limited alternative to the H-2B classification for certain U.S.
construction employers with overseas operations is the B-1 business
visitor classification. B-1
status may encompass many different permissible activities including a
category of “commercial or industrial workers” found at Note 7 of
the State Department’s Foreign Affairs Manual (FAM) section 41. Note
7 provides that an employer may be able to obtain B-1 status for
“an alien coming to the United States to install, service, or
repair commercial or industrial equipment or machinery purchased from
a company outside the United States or to train U.S. workers to
perform such services”. However, in such cases the contract of sale
must specifically require the seller to provide such services or
training and the visa applicant must possess special knowledge
essential to the seller’s contractual obligation to perform the
services or training and must receive no remuneration from a U.S.
source. . . . “ These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant except for an alien who is applying for a B-1 visa for the purpose of supervising or training other workers engaged in the building or construction work, but not actually performing any such building or construction work.” Our
firm handles many such cases for small and large construction
companies (union and nonunion shops).
Click here for more information or free consultation. |