Basics of the H-2B Visa and the H-2B Regulations
Basics of the H-2B
The H-2B non-agricultural temporary worker program allows United States (U.S.) employers to bring foreign nationals to the U.S. to fill temporary non-agricultural jobs. Under the current regulations, an intending employer must first apply for a temporary labor certification from the Department of Labor (DOL) before filing an H-2B petition with the United States Citizenship and Immigration Services (USCIS). That certification informs USCIS that there are no available U.S. workers capable of performing the services or labor, and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The employment must be of a temporary nature for a limited period of time such as a one-time occurrence, seasonal need, peakload need, or intermittent need. A single petition may cover multiple workers if they will perform the same services, they will work in the same location, they are included on the same labor certification, and they come from countries that are served by the same U.S. Consulate. The maximum authorized period is one (1) year. However, the employer may extend the duration of the visa up to three (3) years.
The employer’s need is considered temporary if it is a(n):
· One-time occurrence– A petitioner claiming a one-time occurrence must show that it has:
o Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
o An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
· Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
o Traditionally tied to a season of the year by an event or pattern; and
o Of a recurring nature.
Note: Employment is not seasonal if the period during which the service or labor is needed is:
o Subject to change; or
o Considered a vacation period for the employer's permanent employees.
· Peakload need– A petitioner claiming a peakload need must show that it:
o Regularly employs permanent workers to perform the services or labor at the place of employment;
o Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
o The temporary additions to staff will not become part of the employer's regular operation.
· Intermittent need– A petitioner claiming an intermittent need must show that it:
o Has not employed permanent or full-time workers to perform the services or labor; and
o Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
USCIS, with limited exception, approves petitions only for nationals of countries designated by the Secretary of Homeland Security as eligible to participate in the H-2A and H-2B programs.
Effective January 18, 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.
The Department of Labor (DOL) has recently amended its regulations governing the certification of the employment of foreign workers in temporary or seasonal non-agricultural employment under the H-2B program. Under the new final rule, the temporary labor certification process has been revised.
On April 26 2012, however, before the rule could go into effect, a District Judge in Florida orderedapreliminary injunction preventing the 2012 Final Rule from being implemented.
Under the new regulations, an employer completes the required recruitment after filing the application and must demonstrate (not merely attest) that it was unable to locate sufficient number of U.S. workers. The employer must then submit a recruitment report to the Employment and Training Administration (ETA) after filing, according to instructions from the Certifying Officer.
The new application process is bifurcated into a registration phase, which addresses the employer’s temporary need, and an application phase, which addresses the labor market test. Employers are required to submit an H-2B registration and receive an approval before submitting an application for Temporary Employment Certification and conducting the U.S. labor market test.
- If approved, the registration is valid for a period of up to three (3) years, absent a significant change in conditions, enabling an employer to begin the application process at the second phase without having to re-establish temporary need for the second and third years of registration.
Employers who file H–2B applications with a start date before October 1, 2013 will not be required to obtain the pre-approved H–2B registration, and DOL will continue to adjudicate temporary need during the processing of applications by reviewing the employer’s statement of temporary need in Section B of the ETA Form 9142. However, employers with H–2B applications postmarked on or after April 27, 2012 with a start date on or after October 1, 2013, must comply with all the requirements contained in the registration process unless the Office of Foreign Labor Certification ( OFLC) publishes additional guidance in the Federal Register. (With the implementation of the preliminary injunction, we are awaiting additional instructions from the DOL and the OFLC regarding the next steps).
The procedure under the new regulations:
- Employer must submit and receive a prevailing wage determination from the DOL;
- The employer must then submit an H-2B registration (after the transition period), from which the ETA certifies temporary need for up to three (3) years.
- Thereafter, the employer may submit an application (ETA Form 9142), a copy of the job order, and additional documentation from which the ETA would access the employer’s job opportunity and then order recruitment to ensure a thorough test of the labor market.
The ETA Form 9142 and required documents must be submitted 75 - 90 calendar days before the employer’s date of need.
The required recruiting includes:
- SWA job posting until twenty-one (21) days before the date of need;
- Newspaper advertisements on two (2) days, which includes one on a Sunday;
- The call-back of, and offer of re-employment to, former U.S. workers from the previous year, including workers who were laid off;
- Contacting the bargaining representative, or if there is no bargaining representative, posting the job for fifteen (15) business days at two (2) conspicuous locations at every place of employment; and
- Any other recruiting activities as directed by Certifying Officer.
There is a statutory numerical limit, or "cap," on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscalyear. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1- September 30).
As the H-2B process is complex and in flux currently, it is advisable to have an experienced attorney handle the entire process.