Have you ever wondered how the H-2B visa program works? Does it steal jobs from Americans or does it create opportunities? Today, I interview Chris Pooley, an immigration attorney, and my client Rich Leeman from Landscape Technology Group about how to take advantage of the H-2B program and some tips for networking and really getting the most out of it.
My name's Jack Jostes and welcome to The Landscapers Guide to Modern Sales and Marketing Podcast. This show is all about helping you increase your sales and marketing and enjoy a better lifestyle, and then to do that you're going to need great employees on your team. Now, the H-2B program is kind of complicated and it's something that I'm continually learning about, and I hope you enjoy today's episode where Chris and Rich share several decades of experience in working with this nuanced program.
Rich Leeman
Owner | Landscape Technology Group
Chris Pooley, ESQ.
Immigration Attorney | Law Office of Chris Pooley, Esq.
Jack Jostes:
All right, folks, here we are with Chris Pooley and Rich Leeman, and we're going to talk today about H-2B visas and how to get them for your landscaping company and some common challenges that the green industry faces, and some tips that I didn't know about from Chris. So, I'm here with Rich Leeman. Rich is the owner of Landscape Technology Group up here in Vail. He and I do a bunch of marketing work together, and one of his buddies is Chris Pooley. So Chris, tell us a little bit about yourself. What do you do? Where are you from?
Chris Pooley:
I'm an immigration lawyer. Originally from Ann Arbor, Michigan, been in the Valley here since 2003. I do lots of H-2B visas for landscapers.
What Are H-2B Visas?
Jack Jostes:
So tell us for people who are watching that maybe aren't familiar with H-2B visas, what are H-2B visas? I learned before we started rolling that there are actually four different kinds, so what are they?
Chris Pooley:
Well, H-2B workers are nonagricultural temporary workers. There are four categories:
- Seasonal
- Peak Load
- Intermittent Need
- One-Time Need
Most landscapers are seasonal. Seasonal is if you do it one part of the year, but you don't do it the other part of the year. Peak load is if you do it year-round, like hotel maids, but they have a peak load need for more hotel maids during the peak seasons. Third type is intermittent need. That might be hurricane relief or disaster relief, or sometimes they need extra workers, sometimes they don't. Last category is one-time need, which might be a one-time construction project or something like that.
Jack Jostes:
Okay, so for most of the people watching who run landscape companies, they're going to be wanting to get H-2B visas for seasonal work, right?
Chris Pooley:
Right.
Jack Jostes:
I mean, I suppose some of them could be doing a one-time construction project, but that's typically not the case, right?
Chris Pooley:
Right. Typically most H-2Bs are seasonal.
When Is The Best Time To Recruit H-2B Employees?
Jack Jostes:
So, one of the things that you had shared with me was that there's an optimal time to get H-2B workers. What is that? Explain that.
Chris Pooley:
That's right, Jack. There's a quota of 66,000 H-2B visas, 33,000 become available on October 1st, which is the beginning of the fiscal year for the federal government, the other 33,000 become available April 1st. Every year in recent years, there's been about 100,000 applications for 33,000 visas, so you are in the pole position with the best chance to get an H-2B visa if you have a seasonal need that starts on April 1st. Like Rich, his seasonal need is April 1st through November 30th. Each year Colorado has a well-defined landscaping season, which is April 1st through November 30th each year. It's different in different areas of the country.
Jack Jostes:
So, what if I do snow removal, what if I'm in an area of the country where I'm available to keep people year-round, we do snow removal, we do landscape design and construction, different things like that. Would I want to try and get in for the October one? Talk to me about that.
Chris Pooley:
Well, if you're in that situation and I have clients in that situation that do landscaping in the summer and snow removal in the winter, and the great thing about that is we call them rollovers. If you roll over from an H-2B landscaping job April through November, you can roll over to the winter snow removal job from December through March. Rollovers are not subject to the quota, the quota is only applicable to new H-2B workers coming in from outside the US or changing to H-2B from another visa category.
Jack Jostes:
Okay, so does that mean that I could potentially have one person stay with me for a whole year?
Chris Pooley:
That's right, but there's a limitation on stay, which is three years. So once they've rolled over for three years, they have to leave the US for a time period before they can come back in on an H-2B visa.
Jack Jostes:
Is that time period, isn't it 90 days or something?
Chris Pooley:
Yep, yep.
Jack Jostes:
So if I rolled over for three years and left for 90 days, could I then come back and roll over again? Or does it-
Chris Pooley:
Yes, yes.
Jack Jostes:
Okay.
Chris Pooley:
In fact with the COVID, there's been exceptions to the three-year limitation, they've made exceptions because of COVID. So the tip is, well, for the summer season, ideally to be in the pole position, you want an April 1st start date, because if you have a start date in June like a lot of employers do, they're pretty much locked out of the quota unless they have rollovers, because the quota's going to be filled with people with April 1st start dates. In the winter season, the pole position is an October 1st start date, but the snow doesn't start flying here October 1st, and so the farther you get out from October 1st, the more likely the quota will be reached before you get your workers. Typically, I don't know, it's gone sometime in January.
Chris Pooley:
Due to COVID, the US consulates have been closed and they were taking visa applications from workers who had had visas in previous years, because part of the process of getting a visa is you have to go into the consulate to have biometrics taken, which are digital photos and digital fingerprints. So somebody who's already had the visa before, they have their digital biometrics, they have their digital photos, they have their fingerprints, and so they can issue a new visa without having to let them into the consulate to get the biometrics done. So an employer who hires an H-2B worker who has not had a visa in the past, might not be able to get a visa due to COVID, because they don't want to let them in the building.
Jack Jostes:
So, how do they work around that?
Chris Pooley:
There is no work around.
Jack Jostes:
Well, shucks.
Rich Leeman:
No, so what it is saying is that if you know of a person that's worked for a hotel or seasonally in the winter, then they can compliment you in the summer, then that's somebody who's been there, it's not necessarily you have to look for the worker who has worked for another landscape company. So it's looking for the person that's been on the resort at Martha's Vineyard, that's been up in Washington, that's been in Hawaii or something like that working for a hospitality industry. They want to work year-round or have that opportunity, so that's where you could be searching.
Tip: Network With People In Various Industries
Jack Jostes:
That's great. One of the things, Rich, while we were here, you were networking with everyone who worked here, you were getting people's phone numbers and networking, and everyone knew somebody, so one of your tips is to network.
Rich Leeman:
Correct. Network and find the person that has a H-2B visa. They may not be interested in working that summer, but they're probably working with a company that has five, 10, or 15 or 20 other H-2B workers with them at the moment, and they can spread the word around that you'd like to have them stay for the summer.
Jack Jostes:
Cool. One of the things that some people say is that the whole H-2B program takes jobs away from Americans, but a lot of what I've heard from many landscapers is they can't find Americans to do the work. One of the things that I learned from you is that you actually feel like it allows you to create different jobs in your company. So, tell us a little bit about that.
Rich Leeman:
Correct. So, our landscape season in these mountains here is actually from about April 1st through November 30th, where we can be working, installing trees, patios, shrubs, and flowers, but what we have a difficult time with then is being able to have a workforce from the beginning to the end. A lot of times you'll find that we could be getting some college kids that are available from May 15th to August 15th, but there's a shorter period time where our season is another couple of months on either side of what they would be available for.
Rich Leeman:
But more importantly, what it allows me to do when I can get an H-2B worker is it allows me to hire recent college graduates that do have their degree in landscape architecture, horticulture, in project management, because then they have the job of what they went to school for and are able to manage workers underneath them.
Chris Pooley:
So, basically the H-2B workers create jobs for US workers. It's a misconception that they take jobs away from US workers, because the employers have to jump through more hoops than just about any other non-immigrant, which is a temporary visa category. They have to pay prevailing wage, they have to advertise, do recruitment to show there are no US workers available. Then they create jobs, because Rich can employ more administrative staff, more managerial staff with more H-2B workers.
Jack Jostes:
One of the things that I didn't know about was a J visa, and that unlike J visas, with H-2B visas you have to pay a prevailing wage.
Chris Pooley:
Right.
Jack Jostes:
Right? So, I think there's a misconception out there that, oh, H-2B workers, they're going to get paid less and that's going to decrease what people can get paid in the local market, but that's not the case. So, talk to us about prevailing wages and J visas and all these different nuances.
Chris Pooley:
Oh, sure. I mean, I'm not here to say anything bad about the J-1 program, but the H-2B program has protections for US workers, the J visa program doesn't. J visa doesn't require prevailing wages, J visa doesn't require you to show you can't find a US worker.
Jack Jostes:
Right. So we're at a hotel right now, and so what do you think most hotels would use between the J visa and the H-2B visa?
Chris Pooley:
Oh, every employer would prefer to have H-2B workers, I think because with the J-1, typically you don't get the same worker coming back year after year. I mean, with H-2B, it's the same workers year after year, they're trained, and they bring that knowledge from the previous years with them. Whereas typically with the J-1s, it's new workers every year.
How Are Wages Determined For H-2B Workers?
Jack Jostes:
One of the challenges or one of the things that I was curious about was wages and what you do pay people, because in most industries if you have somebody who's coming back every year, they're increasing their skill and their value of the organization, you'll pay them more, but I think there are certain restrictions with what you can pay people with the same job title. So, kind of talk to me about that.
Chris Pooley:
Oh, sure. So under the H-2B program, you have to have the same wages and working conditions for US workers. So it can raise the wages for US workers in fact, because you can't pay a US worker that does the same job as an H-2B worker any less than the prevailing wage rate. Then you can have wage differences between workers in the same occupation, as long as it's based on experience and performance.
Jack Jostes:
Chris, you primarily work with companies in Colorado, but you also have clients in other states, right?
Chris Pooley:
Yes.
What Mistakes Do Landscapers Commonly Make When Using The H-2B Program?
Jack Jostes:
So, what are some of the challenges that you've seen or mistakes that you've seen, in particular landscapers make, either in Colorado or in other states when working with the H-2B program?
Chris Pooley:
I mean, sometimes new clients don't have a well-defined seasonal need. It has to be an annually recurring, seasonal need, and how the Department of Labor usually determines that is by payroll summaries. They want to look at the number of landscape laborers employed each month, the total wages paid each month, the total number of hours worked each month. So, those numbers have to be higher in Colorado for April through November than they are December through March. So if an employer has more workers in the off-season, pays more wages in the off-season, has more hours worked any one of those months in the off-season, they might not qualify for the H-2B program.
Rich Leeman:
I've been involved in the H-2B program since 2003 when Chris moved into the Valley here as well, so we've been business partners trying to help me with my employees for a long period of time right now. What it really is, is what Chris expressed. It's you have to have your paperwork in line, you have to show your seasonal need through the months of when you need them.
Rich Leeman:
So then you also have to show the seasonal need, but then also you have to be able to employ them the whole time, because the other end of the H-2B program is you have to employ them a minimal amount of hours per week.
Chris Pooley:
Right. They have to have a minimum of 35 hours per week, and then the employer has to guarantee three fourths of the hours for every 12 week period.
Jack Jostes:
So, they are hourly.
Chris Pooley:
Yes.
Jack Jostes:
And you have to guarantee three quarters of their hours?
Chris Pooley:
Right.
Jack Jostes:
Got it.
Rich Leeman:
So, I guess you just can't bring in employees and have them work a part-time basis, you have to make sure your business and prove to the government that you have a seasonal need to employ the amount of employees you want to have, at least three quarters of a time, in our case it's more, and you have to show that consistently over the past years.
Use Marketing To Create Demand For Your Services and Keep People Employed!
Jack Jostes:
Well, and that comes into the show really with marketing, right, and creating enough demand for your business. So, let's talk a little bit about sales and marketing. Rich, you've been working in the Vail Valley for nearly 25 years now. What are some of the things that you've seen change during that time from a sales and marketing standpoint? What's really working for you now?
Rich Leeman:
Well, I'd say steps in with you a little bit, but more recently with COVID, a lot our clients want to work remotely or talk with us remotely. So we're doing a lot of FaceTime calls with clients, Zoom calls with clients during the bidding phase, design phase, and then even on the job sites, we'll be walking around with cameras showing them the work we've done on a daily basis or weekly basis as well.
Rich Leeman:
With that too is our webpage. We're really taking a step up, because people are searching for us on the web, and they're not necessarily going to the past print types of magazines and such in the past or even newspapers and such. So, we're making a conscientious decision to use our web page in Google to be found.
Jack Jostes:
Yeah, and people are searching, and in particular in the Vail Valley, there are a lot of second homeowners, there are a lot of people who maybe their full-time residence is out of state and they're looking online to see who does landscape design. Tell us a little bit more about how have sales changed with Zoom and video conferencing and maybe meeting with people less in-person. Do you think that's going to continue even as restrictions release?
Rich Leeman:
I really think so. For our company, we thought we had to meet the client in the beginning, the middle and the end in-person, shake their hands, have the contract signed in-person, but in today's world, there's DocuSign. There's the fact that the client can see you with the project lifetime right behind them when you're placing the patio, when you're choosing if we're going to a store to choose a fireplace or to choose the outdoor kitchen and stuff. They can be part of that with us while still being at their house in Florida, California, Canada, and such. So, it allows them to be active with us right away.
Jack Jostes:
Yeah, absolutely. I think there's so much that you will always do in-person, and I think we're going to see more and more of it happening over video, happening over video conferencing. One of the things that we're going to work on right now next after we shoot this podcast is recording a video about how to buy from Landscape Technology Group. So Chris, for people who might have questions, where can we learn more about you?
Chris Pooley:
Oh, you can contact me at (970) 845-7474 or www.pooleylaw.com.
Jack Jostes:
All right, cool. Rich, thanks so much for being on the show today. Everyone, I hope you learned some helpful tips on sales marketing and using the H-2B program. My name's Jack Jostes. Thanks so much for checking out The Landscapers Guide to Modern Sales and Marketing Podcast, we look forward to seeing you next week.