News sources are reporting that Donald Trump has hired seventy-eight temporary foreign employees to work at his Mar-a-Lago Club in Palm Beach, Florida. Critics are claiming that he employs a double standard as one of his main campaign themes is that he plans to bring jobs back to the United States.
It is interesting to consider this issue as he is petitioning for these workers under the H-2B visa program, “Temporary Non-Agricultural Worker Visa.” This visa exists so that employers who have difficulty finding workers for seasonal employment. United States Customs and Immigration Service’s (“USCIS”) website lays out the requirements for what types of jobs qualify under the program:
To qualify for H-2B non-immigrant classification, the petitioner (employer) must establish that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- The need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n) one-time occurrence or Seasonal need or Peakload need or Intermittent need.
In addition to demonstrating these requirements, an employer has to file a Labor Certification Application (LCA) and advertise the position locally so that American workers have the opportunity to apply for the position. The employer also has to keep records of its interviews of American workers and has to maintain records of interviews and explanations as to why US workers were not hired if requested.
The requirements of the visa are designed so that an employer pays the employee the prevailing wage for the position, which in theory protects American workers. Mr. Trump has claimed that he cannot find workers to work in the positions he needs filled, while others have claimed that he underpays the employees he hires despite the rules of the program.
There are consequences for employers who violate the terms of this visa program, but this blogger has not found any reports that the Department of Labor or USCIS has taken any action against the Club for violating the terms of the program. In the meantime, the debate about the overhaul of the immigration laws of the United States continues.
Employers interested in the H-2 visa program are encouraged to consult with an experienced attorney with any questions. This blog is for informational purposes only and is not legal advice.