PROPOSED H-2C LAW WOULD ALLOW QUICK VISAS FOR NURSES, OTHER NON-H-1B OCCUPATIONS

Sen. Flake’s bill, the Willing Workers and Willing Employers Act of 2016, will allow workers who work in Job Zones 1 through 3 to perform year-round non-agricultural work in the United States.

Job Zones 1-3 generally are those positions that require less than a bachelor’s degree, such as registered nurses, licensed practical nurses, physical therapy assistants, occupational therapy assistants, caregivers, and other similar allied health professionals.

Sen. Flake’s bill includes many US worker protections, such as: 

• Sponsoring employers would have to pay a “Scarcity Recruitment Fee,” in addition to USCIS filing fees.  This fee is equal to 5 percent of the H-2C’s annual salary.
• The job must be in a full employment area, which is a county whose unemployment rate is 4.9 percent or less.
• Employers have to attest that there are no US workers being laid off as a result of the H-2C workers’ employment.
• Employers have to prove that they have actively recruited US workers for the position.
• Employers would have to participate in E-Verify.

The H-2C program would be active for 10 years.  It will have a flexible cap of 45,000 – 85,000 depending on demand.

H-2C visa holders would also be barred from bringing in any family members into the US.  However they would be able to file for permanent residency, at which time their family members can come to US.

Unfortunately, most pundits give Sen. Flake’s bill virtually no chance of passing.  While this bill is not perfect, it is good to see that there are some Republican Senators who still understand the value that immigration brings to the US.

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.