I have spoken with many of you regarding different strategies for ‘beating the H2B cap’ next season. This email is to summarize two of these options. This strategy works to ‘beat the cap’ because the H2B workers are brought in during the Winter, when not as many businesses apply for H2B visas. As long as the employment start date is before December 15, the employer should ‘beat the cap’. When these workers enter the US in December, they are counted against the annual H2B numbers. Because of this, they don’t need to be counted again when we file for the Spring H2B visas. In both of these examples, 2 H2B petitions are filed each year and the workers are transferred from Employer 1 to Employer 2.
Below are 2 examples. Please call me at 970-318-0464 or email me if you would like to discuss how your business/businesses may be able to do this.
Transferring Winter Workers to a Different Landscaping Business:
This is a creative solution to help reduce your labor shortage by applying for H2B visas in the cold season, when there is less demand for H2B visas. These winter workers get counted against the H2B cap in the winter, so they are not subject to the H2B cap in the Spring. These workers will then be transferred to a landscaping business in the Spring.
NOTE: With this option, it does not matter what group the Employer gets in the January H2B lottery.
Example 1–Different Businesses
Here is an example of how it would work:
ABC Snow Removal LLC has a seasonal need for 10 workers for snow removal. As long as the winter employment start date is between October 1 and December 15, it is very likely there will still be visas available for these workers.
In our example, ABC Snow Removal LLC applies for 10 H2B visas for snow removal technicians to work from November 1 to March 31. These 10 workers are counted against the H2B cap for the 1st half of the years.
Then, in the Spring, XYZ Landscaping LLC applies for 10 H2B visas for landscaping workers. In January, they get in Group D for the H2B lottery. We go through the normal H2B process but then when XYZ Landscaping LLC files their paperwork with USCIS (I-129), it is okay if all of the H2B visa are gone, because these specific 10 H2B workers were already counted against the cap back in November when they entered the USA to work for ABC Snow Removal LLC as snow removal technicians.
As you can see, this is a way to ‘beat the cap’ and get H2B workers in the Spring even if the Spring business doesn’t get in Group A in the lottery.
NOTE: The important part is that the workers are counted against the cap during the 1st half of the year. The workers do not need to engage in the same job duties. For example, a worker could come in on a ‘stonemason’ visa in the winter and then work as a ‘landscaper’ in the warm season.
NOTE: ABC Snow Removal LLC and XYZ Landscaping LLC can be owned by the same person but they do not need to be. They must be separate businesses, however, with different Employment Identification Numbers (EIN) and use a different business address.
Example 2–Within the Same Business
In another example, 2 petitions are filed per year for the same business. This is possible so long as the workers perform totally distinct duties in the Fall/Winter and Spring.
Example: XYZ Landscaping LLC applies for 10 H2B workers to hang Christmas lights and decorations in the late Fall/Winter.
In the Spring, XYZ Landscaping LLC (same company) applies for 10 H2B visas for landscaping workers from April 1 to December 31. They get in Group D in the lottery. We process the paperwork as we normally do but when we go to file the I-129 with USCIS and all of the visas are gone (because they were in Group B, C. or D), we can still get the visas because these same workers that hung Christmas lights were already counted against the cap.
NOTE: Depending upon the business start and end dates, the H2B workers can remain in the United States and transfer directly from Employer 1 to Employer 2 OR if there is a gap in the employment dates, the workers can return to their home country between the 2 jobs.
These scenarios can work for any of your businesses that have seasonal and peak load needs in different times of the year. You can continue to switch each worker back and forth for up to 3 years.