Coleman Jackson, P.C. | Transcript of Legal Thoughts
Published October 5, 2022
Overview:
Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation, and immigration legal matters.
This episode of Legal Thought is a podcast where the Attorney, Coleman Jackson is being interviewed by Gladys Marcos, Immigration Legal Intern at Coleman Jackson, P.C. The topic of discussion is “How to lawfully hire temporary non-agricultural workers on a H-2B Visa?”
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TRANSCRIPT:
ATTORNEY: Coleman Jackson
Legal Thoughts. Coleman Jackson, Attorney and Counselor at Law
“How to lawfully hire temporary non-agricultural workers on a H-2B Visa”
Welcome to Immigration Thoughts
My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
Our topic today is: “How to lawfully hire temporary non-agricultural workers on an H2-B visa? Other members of Coleman Jackson, P.C. are Johanna Powell, Tax Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant, Alexis Brewer, Tax Legal Assistant, and Gladys Marcos, Immigration Legal Assistant.
On this “Legal Thoughts” podcast our immigration legal assistant, Gladys Marcos will be asking the questions and I will be responding to her questions on this important immigration topic, “How to lawfully hire temporary non-agricultural workers on an H-2B Visa?”
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Hello everyone. My name is Gladys Marcos and I am the immigration legal assistant at Coleman Jackson, P.C. Coleman, P.C. is a taxation, litigation and immigration law firm based right here in Dallas, Texas.
My first question for you attorney is with the U.S. in constant need of workers, is there any immigration program that allows U.S. employers or U.S. agents to bring foreign nationals into the United States to temporarily fill non-agricultural positions.
ATTORNEY: Coleman Jackson
Good morning Gladys
Yes, the H-2B program allows United States employers to fill temporary non-agricultural jobs by filing Form I-129 with USCIS. Non-agricultural jobs include, but are not limited to, the following job categories: construction, landscaping, waiters, waitresses and cooks, retail store clerks, inventory stockers and cashiers, cleaning, repairs, pest control, debris removal, maintenance, hospitality, and similar unskilled labor occupations.
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Okay and how does an employer determine whether they are eligible to participate in the H2-B Temporary Non-Agricultural Worker’s Visa?
ATTORNEY: Coleman Jackson
An employer must demonstrate to the Department of Labor (DOL) with credible evidence that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
- Hiring H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
- That the need for foreign workers is temporary. Temporary is measured in the terms of: (1) a one -time occurrence; (2) a seasonable need; (3) a peak load need; or (4) an intermittent need
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Thank you for sharing the eligibility criteria. My next question is what are the steps a U.S. employer must take to petition to bring in foreign nationals under the H2-B temporary Non-Agricultural Workers Visa?
ATTORNEY: Coleman Jackson
There are three steps that an employer must take to apply an H-2B Visa:
Step 1: Submit a temporary labor certificate application to the DOL
Step 2: Submit a Form I-129 to USCIS
Step 3: Upon receiving an approval notice from USCIS, the employer must notify the prospective worker to apply for an H2-B, non-agricultural visa at the U.S. embassy in their home country
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
And who eligible to receive a H-2B non-agricultural worker’s visa?
ATTORNEY: Coleman Jackson
That is an excellent question, Gladys. Not every country is eligible to participate in the H-2B non-agricultural visa program. Let me explain, every year, the Department of Homeland Security updates the lost of eligible H2-B visa countries. Employers seeking to hire H2-B unskilled workers in their establishment must review this DHS list to determine which foreign nationals are currently eligible to participate in the H2-B Non-Agricultural Visa Program.
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Okay and can workers who are already in the United States receive a H-2B Non-Agricultural Workers Visa?
ATTORNEY: Coleman Jackson
If the foreign national is in the U.S. on a non-immigrant employment visa, and a U.S. employer desires to hire the foreign national on a H2-B agriculturalist workers visa, the employer must file Form I-129, Petition for a Non-immigrant Worker.
Once the I-129 is approved, the employee must file a form I-539 that means that a foreign national must file a I-539 Non-immigrant Change of Status Application to change their non-immigrant visas.
Per DHS’s March 2021 announcement (pandemic related): Employers will also be able to hire workers who are already lawfully present in the United States in H-2B status without waiting for approval of the new petition, subject to certain conditions that we won’t go into in this particular podcast. We often go into much more detail on topics discussed in our law firm’s blogs; which can be found on our website at www.cjacksonlaw.com. Our blogs are free of charge.
Finally, if the foreign national is in the U.S. without documents, they cannot be hired as an H2-B non-agricultural worker, nor can foreign nationals who are here on student visas be hired by an American employer under the H2-B Visa Program. Employers cannot hire individuals here on visitor visas or here on a visa waiver program as an H2-B Non-agricultural Visa. These visa categories that I just mentioned cannot be changed to an H2-B non-agricultural worker visa.
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
How long can H-2B workers stay in the United States. Additionally, are they able to bring their families?
ATTORNEY: Coleman Jackson
Once a worker has been granted an H-2B visa they can remain in the United States for 3 years. When their H-2B Visa expires it cannot be extended or used to change status. During these 3 years, they can bring their spouse and children with them. Reminder: immigration law considers a person a child if they are unmarried and under 21 years of age.)
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
How is obtaining workers through the H2-B Visa program better than hiring workers as independent contractors?
ATTORNEY: Coleman Jackson
This is a very interesting and complex question, but only theoretically because in practice federal and state labor laws are extremely clear on this subject. So let me first of all say that federal and state law define whether a worker is an employee or an independent contractor. Whether a worker is properly classified as an employee or independent contractor does not depend on what the parties call the worker. In both federal labor law and Texas labor law, the critical question is whether the worker is under the direction and control of the employer. This is commonly referred to as the ‘direction and control’ test or common law test. In both federal law and Texas law the test consist of about 20 factors. I will not go into further details, but the significant point that I am making is that workers must be classified in accordance with the law. Classification of workers as employees or independent contractors is not a decision left to an employer.
The second point I would like to make at this time is this one:
Employers have federal tax filing requirements, deposit requirements and withholding requirements for all workers classified as employees. Employers must withhold income taxes from each payment paid to the worker, they must timely deposit withheld funds to the IRS, generally using the EFTPS payment system, and the employer must file timely Form 941 (quarterly payroll tax form) and Form 940 (annual payroll tax form) with the IRS. Employers must also give employees Form W2 by its due date, and they must file W4 transmittal documents with the Social Security Administration each year. Moreover all employers must complete and maintain Form I-9 within days of hiring a new worker as an employee where they identify the worker and review the workers eligibility to work lawfully in the United States. Completed Form I-9 must be kept by the employer and are subject to request for examination by the federal government. There can be severe civil penalties accessed for failure to withhold federal taxes, failure to deposit federal payroll taxes, and failure to file required tax returns. Likewise severe penalties can be accessed for misclassification of workers.
As for employer’s responsibilities in Texas; Texas employers must register with the Texas Work Force Commission. They must file quarterly Unemployment Tax Reports with the TWC and they must otherwise comply with the Texas Labor Code as it relates to employing workers in Texas. I might note that TWC periodically perform audit examinations in search for misclassification of workers by employers in Texas. There can be steep cost for misclassification of workers in Texas.
Employers properly classifying workers as independent contractors are not responsible for their tax liabilities or their tax reporting. Employers give the independent contractor a Form 1099 at the end of each year. Employers do not have to report payments to independent contractors to the TWC or any other state or local agency within the state of Texas.
So to summarize my first point: classification of workers is not a decision employers get to pick out of thin air by simply choosing to classified their workers as employees or independent contractors depending upon whether or not the classification makes them more or less competitive in their marketplace or industry. As I previously mentioned in awhile ago, misclassification of workers can catch up with you and have severe federal and state consequences if you get caught. Intentional misclassifications of workers and intentionally hiring workers who are not authorized to work in the United States could expose the organization and individual decision makers within the violating companies in serious legal jeopardy, including criminal prosecution.
My second point is that hiring unskilled workers in the H2-B program is lawful whereas hiring workers who are not authorized to work in the United States is a violation of I-9 rules and could subject violators to ICE investigations and examinations; and sometimes repeating what has already been said previous might be clarifying. Like this point; misclassification of workers could have significant federal tax consequences, such as, denial of labor cost during an IRS examination, or huge tax adjustments by TWC examiners during Texas Workforce Commission audits of the employer. Under some circumstances the IRS and/or TWC could refer the offending employer to each other and/or for prosecution on tax fraud, tax evasion or similar federal and state crimes.
So to summarize in a nutshell my answer to your question number 5 is this: the H2-B non-agricultural workers program can be used to lawfully hire workers in non-agricultural jobs in America. It’s a way of hiring the workers you need to successfully operate your business within the bounds of federal and state law. Law breakers are responsible for their actions and should be held accountable.
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Thank you for that insight. My last question is this one: Are there any other things an employer should consider when thinking of using the H2B Visa Program?
ATTORNEY: Coleman Jackson
Well I cannot begin to think of everything any particular employer should think of when hiring or considering hiring foreign workers under the H2-B Non-Agricultural Workers Program because it depends on all the facts and circumstances that is not knowable to me right now. Employers would need to ask precise questions pertaining to them individually.
With that said, let me just say yes employers do need to know this point in any regardless of what their particular facts or circumstances might be: the USCIS sets a limit on how many H-2B visas available each fiscal year (October 1-September 30). The USCIS has recently increased this cap to meet the needs of the H-2B program, but even still, there are more employers applying for workers under the H2-B visa program than visas available each year.
Its important to keep processing times front of mind whenever you are considering filing an I-129 to hire H-2B workers. Plan well ahead of when you will actually need these temporary workers.
INTERVIEWER: Gladys Marcos, Immigration Legal Assistant
Attorney thank you for this clear and very important presentation on the H2-B temporary non-agricultural worker visa. Many American business owners looking for unskilled laborers and foreign nationals interested in coming to the United States to work temporarily are likely to find this information useful. For now, thanks for sitting with me today and answering my questions concerning how U.S. employers can lawfully hire temporary non-agricultural workers on a H-2B non-agricultural workers visa.
Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or where ever they listen to their podcast. Everybody take care! And come back in about two weeks, for more taxation, litigation and immigration Legal Thoughts Podcast from Coleman Jackson, P.C., which is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.
English callers: 214-599-0431 | Spanish callers: 214-599-0432 |Portuguese callers: 214-272-3100
ATTORNEY: Coleman Jackson
This is the end of Legal Thoughts for now.
Thanks for giving us the opportunity to inform you about : “How to lawfully hire temporary non-agricultural workers on an H-2B Visa?”
If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tune! Watch for a new Legal Thoughts Podcast in about two weeks. We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration. Until next time, take care
