by Ann Margaret Pointer and David C. Whitlock
November 2, 2011

Construction industry employers often face critical shortages of skilled and professional employees. Many wonder if they can hire foreign workers to fill their needs. The answer is maybe.

Employers who can anticipate workforce shortages in both hourly jobs-from foundation work to roofing-and in professional level jobs can use existing temporary guest worker programs if they meet applicable requirements and are not blocked by limits on the number of foreign workers who may be admitted under these programs. There are also special programs for temporary employment of college and graduate school students in part-time jobs and in co-op/work-study programs and for recent graduates. There is even a program specifically for Australian workers to come to the United States for temporary employment.

Because most of these programs require substantial lead time, employers who expect labor shortages should become familiar with practical and legal aspects of these program requirements and consider their options well in advance of needing workers. Advance planning and understanding what they are obligated to provide to guest workers are likely to be critical, particularly in achieving a successful, litigation-free experience.

The federally regulated foreign guest worker programs typically require employers to file "labor condition applications" to specify the number of openings they need to fill, the pay and other terms of the job, details concerning the duties, skill and experience requirements and the period for which workers are needed. The United States Department of Labor (DOL) will determine whether the proposed employment is for a "temporary period" and whether salary or wages and benefits meet applicable "prevailing" standards to avoid "adversely affecting" U.S. workers who are similarly employed.

 

This "prevailing" standards requirement does not necessarily mean that all employees who have similar duties must be paid the same rate. It does mean that there must be supportable reasons for differences in pay and other benefits. To guide and assist the governmental authorities in their evaluations of an employer's application, the employer or his/her counsel can provide wage/salary survey information and backup data to demonstrate the reasonableness of the employer's position on the applicable "prevailing rate." In setting proposed pay rates, employers should take into account job responsibilities, where the employee will be located, special skill requirements for job applicants and other factors that typically affect compensation. Be prepared to explain all of those factors to the DOL. Depending on the state where a prevailing rate request is made, it can take up to six weeks to obtain a determination.

The DOL, in consultation with the appropriate state workforce agency, will determine whether there are U.S. workers available to perform these jobs. The employer must be prepared to demonstrate that he has hired available U.S. workers and that he has not imposed hiring requirements on U.S. applicants not required of the foreign workers. Assuming that an employer's application is approved by the DOL, the employer will then file a petition for the issuance of guest worker visas for the approved number of workers through the Department of Homeland Security.

Guest worker applications are typically filled six months ahead of the needed date for professional employees and 120 days ahead of the needed date for hourly workers. There are statutory limits on the number of visas that will be awarded in any year, and you can expect processing delays. Applications for employment of temporary hourly workers should be filed by Friday, June 2, 2007, to have a reasonable chance of receiving approval on and after Monday, October 2, 2007. Employers who have met the earlier April 2, 2007, deadline for filing for the opportunity to hire professional level temporary foreign workers will be selected by lottery to receive the limited available visas. The lottery is necessary because employers filed applications for more than three times the number of available visas. Employers should expect similar levels of interest in hiring hourly workers.

 

The most likely available visa category to fill labor shortages of drywall installers, painters and other skilled laborers is known as the H-2B visa. For H-2B visa applications, the petitioning employer must show that the jobs to fill are "temporary" positions as defined under governmental guidelines. Workers can be admitted into the United States and authorized to work under an H-2B petition only for up to one year. (For example, on a special project that is scheduled to last no more than twelve months.) Nonetheless, in special circumstances, extensions for up to three years can be obtained. H-2B employees can also be obtained for jobs that require a workforce increase on a seasonal or other "peakload" basis. Employers that have a recurring seasonal need for larger workforces from, for example, April through November each year, and who cannot locate sufficient U.S. workers for their jobs, may be able to supplement their workforces every year. Employers in the landscaping, seafood, hospitality and agricultural sectors have done this for many years. In those cases, employers can file a single governmental application for as many workers as they will need to hire for a given temporary period, in a particular job and location. Employers may bring in H-2B workers who can move from project-to-project over the course of their stay so long as the employer can provide an itinerary of the locations and dates of work and so long as each job is temporary.

Petitions must be carefully prepared to specify details concerning job requirements, skills and qualifications and should be viewed as the functional equivalents job offer contracts to workers who meet the specified requirements. These job order applications are placed in the workforce job bank for the state in which the jobs will be located so that the U.S. workforce can be canvassed for interest in the jobs. Additionally, employers are typically required to recruit available U.S. workers through newspaper advertisements. For construction jobs, the DOL guidelines provide for referral of hourly job opportunities to unions that represent "workers in the same or substantially equivalent" job classifications whenever an employer requests ten or more workers in the same occupation at any one time or within a six-month period.

Although there are multiple steps associated with filing applications with the DOL, followed by a separate filing with the Bureau of Citizenship and Immigration Services, many employers routinely handle such filings on their own, particularly once they learn the processes and applicable special regulations.

 

Employers must be sensitive to the fact that they may face discrimination lawsuits if they cannot demonstrate that differences in treatment-pay, benefits, etc.-between their guest workers and their U.S. workforce are based on one or more factors other than an individual's citizenship, national origin, age, visa status, etc. If, for example, the employer must pay H-2B temporary workers at a higher hourly rate of pay than existing U.S. workforce in the same job, especially in the same location, the employer needs to have objective factors, such as years of experience, special skills and competencies, to justify a wage differential.

The DOL will not issue a labor certification that the employer has met the applicable legal requirements if there is a labor dispute at the workplace, and the Bureau of Citizenship and Immigration Services will not authorize issuance of the visas if a labor dispute develops at any time before the workers arrive.

Worker advocates have won court decisions and have settled other lawsuits involving H-2B employers of pine straw harvesters and forestry workers on the theory that the Fair Labor Standards Act (the "Wage-Hour law") requires employers to reimburse workers the cost of their travel to the workplace, their visas and border crossing expenses and other pre-employment expenses at the time the workers are paid their wages for their first workweek, to the extent those costs would cut into workers' minimum wages. This is another drawback to using the H-2B program. There are also court rulings adopting the worker advocates' theory of what the Wage-Hour law requires in the agricultural sector. The plaintiffs' theory is that such costs are like costs incurred for tools that a worker must use to perform the job. A suit urging a court to adopt this interpretation of Wage-Hour law is currently pending against a hotel employer in New Orleans, LA, that brought in H-2B workers.

 

The theory these adverse rulings and settlements are based on could theoretically apply to all U.S. workers who relocate to take permanent or temporary jobs, as well as to guest workers in professional jobs. A request for an official Opinion of the Wage-Hour Administrator is currently pending, and some members of Congress plan to seek legislative correction of these interpretations of Wage-Hour law.

The advantages of using any of the guest worker or student/recent graduate programs can only be made after careful consideration of the alternatives. Employers that are interested in learning more about how these programs work and what is required under them may visit the U.S. Department of Labor website http://www.dol.gov/. 

 

Construction Business Owner, July 2007