Thursday, September 13, 2012

Keep Your Rides Running with H-2b Foreign National Workers

Joel Pfeffer, Esquire
jp@muslaw.com
Carnival operators you know the advantage of employing hard-working employees who return year after year.  Foreign nationals can be one source of dedicated and reliable workers.  Many carnival operators employ foreign nationals either through the Department of State J-1 Exchange Visitors Summer Work Travel Program or the Department of Labor (DOL) H-2b Temporary Non-agricultural Employment Program.  Now the rules have changed.  The J-1 program no longer permits traveling fairs as employers.  If you rely on J-1 foreign workers you may have been caught off guard by this development and you will need to consider the H-2b program for next season.
 
Here’s how the H-2b program works:  DOL allows an annual quota of 65,000 foreign workers for all non-agricultural, seasonal businesses, divided between the summer and the winter seasons.  Seasonal employers must recruit U.S. workers by advertising open positions in the newspaper, post the positions with their State Employment Service Agency and file a report with the DOL.  Once the DOL approves, a petition is filed with the Department of Homeland Security that lists the foreign employees by name if they have been identified at the time of filing.  H-2b workers from certain countries are preferred with streamlined processing for those countries.  Employees must apply to U.S. Consulates abroad for the H-2b visa and be prepared to convince the U.S. Consulate abroad of their intent to return home after the season.
 
DOL rules now prohibit recruiters from charging recruitment fees to employees and require employers to cover employee travel expenses to the U.S.  But even with these requirements, the value of employing foreign workers far outweighs the costs of the H-2b program for many carnival operators.  In fact, Amusement Park Workers accounted for 11 percent of all H-2b workers and two traveling carnivals were among the top 10 H-2b employers this year.
 
Employers hiring through the H-2b program must be careful to comply with all aspects of federal employment law.  For example, employers must pay H-2b workers no less than the “prevailing wage” in the industry.  The DOL maintains special statistics for H-2b employees.  Preliminary filings with the DOL are made five to six months prior to the employer’s season and employers who want to take advantage of the program must commence the preliminary filings in a timely manner.  Otherwise, they may find that when their DOL application is approved, the quota is exhausted and H-2b visa slots are no longer available.
 
The DOL is also considering changes to the H-2b program.  You must be careful to stay abreast of changing regulations and follow DOL guidelines closely.  If you do, the H-2b program can be a source of hard-working, loyal and dedicated employees for your carnival.
 
For more information about the H-2B program, please contact Joel Pfeffer at jp@muslaw.com or 412-456-2877.

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