H-2B GuestWorker Program
|
Cap Amount |
Cap Amount |
Beneficiaries Approved |
Beneficiaries Pending |
Beneficiaries Target¹ |
Total |
Date of Last Count |
|
H-2B 1st Half |
33,000 |
41,108 |
0 |
47,000 |
41,108 |
4/9/10 |
|
H-2B
2nd Half |
33,000² |
24,390 |
784
|
47,000 |
25,174 |
5/12/10 |
The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30), with exceptions for recently returning workers.
In the case of the H-2B certification, the DOL decision is only advisory to USCIS. The certification request is made by the employer using Form 9142, and more than one worker may be requested as long as all workers are to perform the same duties, in the same occupation, receive the same pay, and work for the same period of time. 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 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.
Qualifying Criteria
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 as long as the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary The employer's need for the duties to be performed must be justified under either a one-time occurrence, intermittent, seasonal, or peak load need;
The employer'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. However, an employer's seasonal or peak load need of longer than 10 months, which is of a recurring nature, must be supported by compelling evidence;
The job opportunity must not be part-time employment; only full-time (i.e., 40 hours per week) employment can be certified;
Process for Filing
o The prospective employer prepares and files an H-2B application with the National Processing Center (NPC) serving the area of proposed employment. An employer may not file an Application for Temporary Employment Certification until all of the pre-filing recruitment steps set forth below have been fully satisfied.
o The employer must request a prevailing wage determination from the NPC on Form ETA 9141;
o Submit a job order to the State Workforce Agency (SWA) serving the area of intended employment no more than 120 calendar days before the employer’s date of need; Publish two print advertisements (one of which must be on a Sunday); and
o If the employer is a party to a collective bargaining agreement governing the job classification that is the subject of the H-2B labor certification application, the employer must formally contact the local union that is party to the collective bargaining agreement as a recruitment source for available U.S. workers;
o Prepare, sign, and date a written recruitment report. The employer may not submit the H-2B application until the recruitment report is completed. The recruitment report must identify each recruitment source by name; state the name and contact information of each U.S. worker who applied or was referred to the job up to the date of the preparation of the recruitment report; explain the lawful job-related reason(s) for not hiring any U.S. workers who applied or were referred to the position. Resumes and evidence of contact must be retained along with the recruitment report for a period of no less than 3 years, and must be provided in response to a Request for Information (RFI) or in the event of an audit.
o One orginal ETA Form 9142 signed and dated by the employer.
o Supporting evidence and documentation that justifies the chosen standard of temporary need (i.e., one-time occurrence, intermittent, seasonal, or peakload need).
o If the employer is represented by an attorney, the attorney must file a Notice of Appearance (Form G-28) with the application package
o The NPC Certifying Officer, upon review of all available documentation, will determine whether to grant, deny, or issue a notification to the USCIS that certification cannot be made based on whether or not:
1. Nature of the employer's need is temporary and justified based on a one-time occurrence, seasonal, peakload, or intermittent need
2. Qualified U.S. workers are available for the temporary job opportunity
3. Employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers
4. Job opportunity contains requirements or conditions which preclude consideration of U.S. workers or which otherwise prevent their effective recruitment
o 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 Nonimmigrant Worker. The Labor Certification Determination and the Form I-129 are submitted to the USCIS along with the appropriate filing fees.
o If a temporary labor certification is denied, in whole or in part, the employer may request review of the denial by the Board of Alien Labor Certification Appeals (BALCA).
o 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.
