The U.S. construction industry is facing a growing labor shortage. In its 2022 Construction Outlook, Associated General Contractors reported that 83 percent of contractors nationwide are having a hard time filling some or all of their open positions. U.S. construction companies who struggle to fully staff their operations can hire foreign nationals through several visa programs. The options available will depend on the position, the skill level it requires, and the worker’s qualifications and country of origin.
H-2B Visa Program
The H-2B visa program allows U.S. employers to hire foreign nationals from about 80 eligible countries to fill seasonal and other temporary positions that require little or no formal education.
With labor shortages plaguing the construction industry for the last decade and more, construction is among the industries with the highest prevalence of H-2B workers, along with food service, hospitality, amusement, janitorial services and landscaping.
To successfully hire foreign workers through this program, employers must be able to demonstrate that the work is in fact temporary. They must also secure a temporary labor certificate by showing that they tried but failed to recruit U.S. workers to fill the position and that hiring foreign laborers will not harm similarly situated U.S. workers.
Unfortunately, demand for the H-2B program exceeds the number of visas available each year, and spots are awarded by lottery. In a typical year, H-2B visas are limited to 66,000 in total, with half reserved for workers with job start dates from October 1-March 31 and the other half allotted to workers beginning work from April 1-September 30.
An H-2B visa can be approved for up to a year initially, and it can be extended in one-year increments, not to exceed three years total.
H-1B Visa Program
For positions requiring specialized knowledge and education, such as project manager, architect or engineer, the H-1B visa program for specialty occupations may apply.
To qualify as a specialty occupation, the position must normally require at least a U.S. bachelor’s degree or the foreign equivalent, and the foreign worker must hold a bachelor’s degree or its equivalent in a field related to the position.
Similar to H-2B visas, U.S. employers must show they were unable to recruit workers domestically or that hiring a foreign worker will not harm similarly employed U.S. workers.
Another similarity is that H-1B visas are capped. In a typical year, 85,000 visas are given out, with 20,000 spots reserved for advanced degree professionals who graduated from a U.S. university. As demand for H-1B visas can exceed 200,000 applications, the program is highly competitive.
H-1B visas are valid for an initial period of up to three years, and they can be extended for up to three additional years.
TN Visa Program
Under the special economic relationship created by the North American Free Trade Agreement, Canadian and Mexican citizens in certain professions can apply for TN nonimmigrant status if they have a job offer from a U.S. employer. The list of TN visa-eligible positions includes some occupations that construction companies may hire for, including architect, engineer, industrial designer and landscape architect.
TN nonimmigrant visas are valid for up to three years initially and can be extended, with no set limit to how long an individual can stay in the TN status.
TN visas are not capped and the application process is not as arduous as other employment-based visa programs.
Employment-Based Green Cards
Construction companies may choose to sponsor certain noncitizen workers for employment-based green cards. These immigrant visas are divided by “preference” categories, with the third preference (EB-3) the most appropriate choice for most construction positions. The EB-3 category applies to skilled workers, professionals and other workers with a full-time, non-seasonal job offer.
However, EB-3 visas are limited each year and the process can be very lengthy. After employers secure permanent labor certification for the position from the Department of Labor and petition on behalf of the prospective employee with U.S. Citizenship and Immigration Services, EB-3 visa applicants are assigned a priority number. Their visa application cannot be processed until their priority number comes up. Priority numbers vary by country, and for visa applicants from certain countries, the wait can stretch on for several years.
Bolour/Carl Can Help
Whether you are a construction company looking to hire foreign national workers or a foreign national worker with a job offer from a U.S. employer, the employment-based visa lawyers at Bolour/Carl can help you determine the best visa program to meet your needs and expertly guide you through the complex H-2B, H-1B, TN or green card application processes. Contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].
