Written by attorney Damjan Petar DeNoble

The Ultimate Guide to H-2B Certification

Step by Step Guide for Employers Wishing to Hire H-2B Workers

If you've ever wanted to hear someone talk to you about what H2B Certification actually entails, then watch this video. We break down the process step by step and even add in stories from H2B Certification processes already past.

For complex reasons, and perhaps for all too human ones, the H2B program has largely remained unharmed under the current administration (you may have heard that President Trump utilizes the H-2B program at most of his resorts).

This is despite the fact that the program has been controversial for much of its existence, up to the present day where labor reformers point to H2B as a wage killer. There is the issue of the H2B “cap” not being extended, but we can leave that for another post.

H2B Certification Step 1: Determine Temporary Need for H2B

First, an applicant should determine whether their need is temporary. This isn’t as easy as you might think. There is plenty of material that you can find that will help you figure out if your need is temporary, but the main emphasis is that your need has a clear definable end in the near future. We go into this in the video.

H2B Certification Step 2: Prevailing Wage Determination

After determining that your need is temporary in nature and fits into one of the above categories, you’ll be ready to move forward with the various application steps.

Accordingly, step 2 is to obtain a Prevailing Wage Determination. At this stage, an employer will need to provide a comprehensive description of the job(s) and a full list of areas that work will be performed, along with other things, discussed in the video as well.

H2B Certification Step 3: Applying for Certification at the Department of Labor

After the Prevailing Wage Determination is Issued, an employer can move forward with its application at the Department of Labor level. This is done through a site called iCert. Through the iCert portal, an employer must fill out a 9142B Form. It's simple-seeming, but hard.

H2B Certification Step 4: Recruitment and the Recruitment Report

But let’s assume that the DOL issues a Temporary Approval. After receiving this notice, an employer must begin local recruitment. Local recruitment must be pursuant to the Code, and includes advertising the position(s) in a local newspaper, applicable State Workforce Agency, worksites, and possible on the employer’s website. This can be a pricey process, especially for inexperienced employers.

H2B Certification Step 5: Applying for H2B Certification with U.S Citizen and Immigration Services (USCIS)

But, a DOL approval is not determinative of an approval from USCIS. As soon as DOL approval is granted, an employer should file an I-129 with USCIS.

The I-129 form is lengthy, but only certain portions apply to H-2B applicants, so be careful to fill out all applicable sections but no non-applicable sections.

H2B Certification Step 6: Consulate processing and transfer of workers

Even after this gauntlet, it is necessary to find your workers, get them through the consulate process, get them to your worksite, and then compensate foreign workers for travel expenses, etc. This “Step 6” is really an ongoing effort that requires a focus on detail, which many employers may find hard to stomach.

Should You do H2B Certification Yourself?

As an attorney that has been through several H-2B application cycles, I can’t imagine running a business and attempting to apply for an H-2B visa. Can you?

We'd love to hear from you on what else we can write about, so just let us know in the comments.

Additional resources provided by the author

There are additional resources available on Bull City Lawyer's Youtube Channel where you can subscribe and ask questions (which we will often answer with a video).

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