H-2B WORK VISA INFO

The H-2B Work Visa was created to allow people to come to the United States temporarily, mainly for non-agricultural jobs, in which the U.S. workers are in short supply. Up to 66,000 H-2B Visas are issued every year.

The H-2B non-immigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peak load or intermittent basis. The H-2B visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B non-immigrants.

Homeland Security regulations require the intending employer first to apply for a temporary labor certification from the Secretary of Labor advising the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS) as to whether qualified U.S. workers are available and whether the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers, or a notice that such certification cannot be made, prior to filing an H-2B visa petition with USCIS.

There is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30).The Department of Labor will continue to review and process all H-2B applications on a first in, first out basis, regardless of whether the 66,000 visa cap has been reached.

Employment must be temporary or seasonal non-agricultural job from an U.S. employer. An applicant must have the appropriate background, skills and/or natural abilities needed by the employer. H-2B Visas are targeted at skilled and unskilled workers.

The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must be temporary.

A job opportunity is considered temporary under the H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer's need, not the nature of the duties, that is controlling.Part-time employment does not qualify as employment for temporary labor certification under the H-2B program.

Only full-time employment can be certified. The period of the petitioner's need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year.

If there are unforeseen circumstances where the employer's need exceeds one year, a new application for temporary labor certification is required for each period beyond one year. However, an employer's seasonal or peak load need of longer than 10 months, which is of a recurring nature, will not be accepted.
Employers seeking to employ temporary H-2B workers must file two (2) originals of the Form ETA 750, Part A, directly with the State Workforce Agency (SWA) serving the areas of intended employment. Once reviewed, the SWA will send the complete application to the appropriate National Processing Center (NPC). This process, however, does not apply to employer applications for boilermakers, entertainers, logging and professional team sports, who must abide by special filing instructions. When filing an application with the SWA, it is not necessary for the employer to name each temporary foreign worker it wishes to employ.

An employer may submit a request for multiple unnamed alien workers as long as each worker is to perform the same type of work on the same terms and conditions, in the same occupation, in the same area(s) of intended employment during the same period of time. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another. To allow time for processing delays and correction of application errors, the employer should file the labor certification application at least 60 days before the worker is needed, but cannot file more than 120 days before the worker is needed in order to ensure a timely test of the labor market.

An H-2B temporary labor certification is advisory to USCIS and, where the employer is notified by the NPC Certifying Officer that certification is denied or cannot be made, the employer may elect to re-file the application with additional information with the SWA, or may submit countervailing evidence directly to USCIS. There is no provision for reconsideration or appeal of the determination made by the DOL through the NPC Certifying Officer.

The following is a general outline for filing an H-2B application for alien labor certification. For additional instructions, please review the Training and Employment Guidance Letter 21-06, and Training and Employment Guidance Letter 21-06, Change 1, Procedures for H-2B Temporary Labor Certification in Non-Agricultural Occupations. Special instructions exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions, please review TEGL 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and TEGL 31-05, Special Guidelines for Processing H-2B Temporary Labor Certification in the Entertainment Industry section.

An employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 750, Part A, offer of Employment portion of the Application for Alien Employment Certification with the SWA serving the area of intended employment. An association or other organization of employers is not permitted to file master applications on behalf of its members under the H-2B program. Every H-2B application must include the following documentation:

Two (2) originals of ETA Form 750, Part A, Offer of Employment portion of the Application for Alien Employment Certification, signed and dated by the employer and double-sided. ETA Form, Part B, Statement of Qualifications of the Alien, is not required to be completed;

• Documentation of any efforts to advertise and recruit U.S. workers prior to filing the application with the SWA;
  A detailed statement explaining (a) why the job opportunity and number of workers being requested reflect a temporary need, and (b) how the employer’s request for the services or labor meets one of the standards of a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. This statement of temporary need must be submitted separately on the employer's letterhead with signature. A labor shortage, however severe, does not alone establish a temporary need. One of the four temporary needs standards must be satisfied.
• Supporting evidence and documentation that justifies the chosen standard of temporary need.
  If the employer's representative files the application, the employer must sign the "Authorization of Agent of Employer" statement on the ETA Form 750, which authorizes the agent to act on the employer's behalf. An attorney must file a Notice of Appearance (Form G-28) naming the attorney's client(s). The employer is fully responsible for the accuracy of all representations made by the agent on the employer's behalf.
  

When the job opportunity requires work to be done at multiple locations either within the jurisdiction of the SWA or within a MSA that covers multiple SWAs, the application must include the names and physical addresses of each location. This requirement also applies to job contractors filing H-2B applications.

The SWA will review each application for completeness. If the job offer is less than full-time, offers to pay a wage below the prevailing wage, contains unduly restrictive job requirements or a combination of duties not normal to the occupation, or has terms and conditions of employment which otherwise inhibit the effective recruitment and consideration of U.S. workers for the job, or is otherwise unacceptable, the SWA shall advise the employer to correct the deficiencies before commencing the recruitment.

If deficiencies exist, the SWA will communicate deficiencies to the employer or the employer's authorized representative. Failure to respond to the SWA notification, or failure to correct all of the deficiencies set forth in the notification for the application will result in the case being closed and processing discontinued.
When commencing recruitment, the SWA shall prepare a job order, using the information on the application, and place it into the SWA job bank system for 10 calendar days. During this period, the SWA should refer qualified applicants who contact the local offices and those in its active job files.

During the 10-day posting of the job order, the employer shall advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers. The employer advertisement must:

• Identify the employer's name and direct applicants to report or send resumes to the SWA for referral to the employer;
• Describe the job opportunity with particularity, including duties to be performed, work hours and days, rate of pay, and the duration of the employment;
• State the employer’s minimum job requirements;
• Offer wages, terms and conditions of employment which are not less favorable than those offered to the alien and are consistent with the nature of the occupation, activity, and industry; and
• State the total number of job openings the employer intends to fill.
  

The employer shall document that union and other recruitment sources, appropriate for the occupation and customary to the industry, were contacted and either unable to refer qualified U.S. workers or non-responsive to the employer's request. Such documentation must be signed by the employer.

The employer will provide the SWA with copies of newspaper pages (e.g., tear sheets) or other proof of publication (e.g., affidavit of publication, invoices or other electronic verification) furnished by the newspaper for each day the advertisement was published. In addition, the employer will submit to the SWA a written, detailed recruitment report that is signed by the employer. The written recruitment report must:

• Identify of each recruitment source by name;
• State the name, address, telephone number, and resume (if submitted to the employer) of each U.S. worker who applied for the job; and
• Explain the lawful job-related reason(s) for not hiring each U.S. worker

After the recruitment period, the SWA will send the application, results of recruitment, prevailing wage findings, and all other supporting documentation to the appropriate NPC Certifying Officer.

Based on the results of the employer's and SWA recruitment efforts, the NPC Certifying Officer will determine whether there are other appropriate sources of workers from which the employer should have recruited in order to obtain qualified U.S. workers. If further recruitment is warranted, the NPC Certifying Officer will return the application to the SWA with specific instructions for additional recruitment.

The NPC Certifying Officer will determine whether to grant or deny the temporary labor certification or to issue that such certification cannot be made based on whether or not:

• The nature of the employer's need is temporary and justified based on a one-time occurrence, seasonal, peak load, or intermittent need. To determine this, the NPC Certifying Officer will take into account the duration of the employment opportunity identified on the ETA Form 750, Part A, the employer's statement of temporary need, and all evidence and documentation submitted with the application intended to substantiate the chosen standard of temporary need. Qualified U.S. workers are available for the temporary job opportunity.
• To determine if a U.S. worker is available, the NPC Certifying Officer will consider U.S. workers living or working in the area of intended employment, and may also consider U.S. workers who are willing to move from elsewhere to take the job at their own expense, or at the employer’s expense, if the prevailing practice among employers who employ workers in the occupation is to pay such relocation expenses.
• The NPC Certifying Officer will consider a U.S. worker able and qualified for the job opportunity if the worker by education, training, experience, or a combination thereof, can perform the duties involved in the occupation as customarily performed by other U.S. workers similarly employed and is willing to accept the specific job opportunity.
• To determine if U.S. workers are available for job opportunities that will be performed in more than one location, workers must be available in each location on the dates specified by the employer.
• The employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers. To determine this, the NPC Certifying Officer will consider such factors as local or regional labor market information, special circumstances of the industry, organization, and/or occupation, the prevailing wage rate for the occupation in the area of intended employment, and prevailing working conditions, such as hours of work.

The job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment, such as:

• The job opportunity is vacant because the former occupant is on strike or locked out in the course of a labor dispute involving a work stoppage or the job is at issue in a labor dispute involving a work stoppage;
• The job opportunity's terms, conditions, and/or occupational environment are contrary to Federal, state, or local law;
• The employer has no location within the U.S. to which domestic workers can be referred and hired for employment;
• The employer will not pay a wage or salary for the job to be performed;
• The job's requirements are unduly restrictive or represent a combination of duties not normal to the occupation; or
• The employer has not recruited U.S. workers according to the DOL policies and procedures.

In situations where the application appears to be ineligible for temporary labor certification because the employer has not met its burden of providing adequate documentation/evidence or where a specific DOL policy was not complied with by the employer, the NPC Certifying Officer has the authority to issue one Request for Information, in writing, to the employer or the employer's authorized representative. The employer will have seven (7) calendars days from the date it received the RFI to respond to the NPC Certifying Officer.

If the NPC Certifying Officer issues a temporary labor certification, it shall be for the entire duration of the temporary employment opportunity identified on the ETA Form 750, Part A. The date on the temporary labor certification shall be the beginning and ending dates of certified employment and the date certification was granted. The beginning date of certified employment may be no earlier than the date certification was granted.

The certification or notice of denial thereof is to be used by the employer to support its visa petition filed with USCIS. To obtain the H-2B work visa, the employer uses the USCIS Form I-129, Petition for Non-immigrant Worker. The Labor Certification Determination and the Form I-129 are submitted to the USCIS along with the appropriate filing fees. A candidate outside the U.S. must apply for a visa at the U.S. Consulate and the employer must provide copies of the above forms to the local USCIS service center.