H-2B TEMPORARY NONAGRICULTURAL WORKER

The H-2B nonimmigrant program permits employers to hire foreign workers to come to the US and perform temporary nonagricultural work, which must be one-time, seasonal, peak load or intermittent.  There is a limit of 66,000 on the number of foreign workers who may receive H-2B status during each fiscal year (October through September).  

The first step in any H-2B case is to request certification of the application from the US Department of Labor.  The certification request is made by the employer using the same labor certification form used for labor certification green card cases (Form ETA 750), and multiple openings of the same job and rate of pay may be on the same application. The 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 for H-2B at least 60 days, but not more than 120 days before the worker is needed.

US DOL's Qualifying Criteria

1. The job and the employer's need must be one time, seasonal, peak load or intermittent;
2. The job must be for less than one year; and
3. There must be no qualified and willing U.S. workers available for the job.

Process for Filing

STEP ONE
The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) serving the area of proposed employment.  The SWA then instructs the employer on recruitment requirements, appropriate the wage levels and refers qualified candidates to the employer for interviews.  The employer prepares a recruitment report summarizing the results of the effort. This recruitment report includes names and addresses of applicants and lawful reasons for not hiring the interviewees.  Applications for certification are then forwarded by the local SWA to the appropriate regional US DOL office.  The US DOL will grant certification if it finds that qualified persons are not available and the wage offered is fair. The certification is then used by the employer to support its visa petition filed with the USCIS.   

STEP TWO
In the second stage, the employer submits the approved labor certification forms to the USCIS with an I-129 Petition.  In “emergent situations” where all the beneficiaries are not known, multiple petitions may be filed for beneficiaries subsequent to the initial filing.  Allowing petitions with unnamed beneficiaries is “the exception, not the norm” and INS should not grant the exception without evidence from The DOL’s approval or denial of the labor certification is given great weight by the USCIS, but the USCIS is not bound by the DOL decision. The employer must also demonstrate that there is no labor dispute at the work place.

The worker will be admitted for the time period indicated on the labor certificate but for no longer than one year.

 

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