The H-2B nonimmigrant program permits employers to hire foreign workers to perform temporary non-agricultural services or labor in the U.S. on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B nonimmigrants. Homeland Security regulations require that, except for Guam, the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will complete a review of each H-2B application within 7 calendar days of receipt. When filing an application, 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 foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment, and during the same period of employment. Certification is issued to the employer, not the worker, and is not transferable from one employer to another.
The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must also 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. Except where the employer's need is based on a one-time occurrence, the Secretary of Labor will, absent extenuating circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring seasonal or peakload need lasting longer than 10 months.
Part-time employment does not qualify for temporary labor certification under the H-2B program. Only full-time employment can be certified.
The OFLC Administrator has the authority to establish or to devise, continue, revise, or revoke special procedures in the form of variances for the processing of certain H-2B applications when employers can demonstrate, upon written application to the OFLC Administrator, that special procedures are necessary. Special procedures currently exist for temporary labor certification in Tree Planting and Related Reforestation Occupations and the Entertainment Industry. For additional filing instructions for these industries, please review Training and Employment Guidance Letter No. 27-06, Special Guidelines for Processing H-2B Temporary Labor Certification in Tree Planting and Related Reforestation Occupations and Training and Employment Guidance Letter No. 31-05, Procedures for Temporary Labor Certification in the Entertainment Industry Under the H-2B Visa Program.
Process for Filing
Prior to filing an H-2B application, the employer must first:
- Obtain a prevailing wage determination from the National Prevailing Wage Center (NPWC). For requirements on obtaining a prevailing wage determination for the occupation, employers are encouraged to refer to 20 Code of Federal Regulations (CFR) 655.10 and 655.11. Employers may submit a request for a prevailing wage determination electronically via the iCERT Portal System.
- Submit a job no more than 120 calendar days prior to the employer's date of need with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be open and available for recruitment purposes for a minimum of 10 calendar days. During the period of time the job order is active, the employer must publish two print advertisements for the position(s), one of which must be on a Sunday. For pre-filing advertising requirements, employers are encouraged to refer to 20 CFR 655.15 and 655.17.
The following is a general outline for filing an H-2B application for temporary labor certification. For additional instructions, please review the regulations at 20 CFR 655, Subpart A, Labor Certification Process and Enforcement of Attestations for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers).