Wednesday, October 21, 2015

A PRIMER ON HOW AN EMPLOYER MIGHT WIN AN H-2B CASE FOR CAREGIVERS

The H-2B visa is a visa used for temporary or seasonal workers.  As BALCA explained in a case published earlier this week, In the matter of: Absolute Home Care, the H-2B is not a flexible visa.  The H-2B is not a viable option for healthcare employers seeking to fill long term staffing shortages.  An H-2B can only be used to fill staffing shortages, such as a one-time occurrence, seasonal need, peakload need or intermittent need.

In the matter of: Absolute Home Care the employer, Absolute Home Care, asked the DOL to certify that it had a need for twenty Caregivers for nine months, from October 2015 – June 2016.  In support of its claim, Absolute Home Care, provided the DOL with evidence that it traditionally had more clients in the prior winter (January – March 2014), than in the summer months. 

This argument this did not convince the BALCA judge for at least two reasons.  First, the evidence was that the need was for three winter months, not the nine months requested in the Application.  Second, Absolute Home Care asked for 20 Caregivers without documenting a single client contract substantiating the need for the period between October 2015 – June 2016. 

One bright spot is that the judge’s opinion allows the reader to “reverse engineer” how an H-2B might be approvable.  A successful case could be made if the employer can show past practice evinces a seasonal need, along with specific forward-looking contracts detailing a temporary need for the workers.

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