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 ETA 750, Part A, 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 peakload 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 peakload 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

1. The prospective employer prepares and files an H-2B application with the State Workforce Agency (SWA) serving the area of proposed employment. Every H-2B application must include the following documentation:
   
   • Two (2) originals of ETA Form 750, Part A, signed and dated by the employer and double-sided. ETA Form, Part B, is not required;
     
     
   • Documentation of any efforts to advertise and recruit U.S. workers prior to filing the application;
     
     
   • A detailed statement of temporary need on the employer's letterhead with signature; and
     
     
   • Supporting evidence and documentation that justifies the chosen standard of temporary need (i.e., one-time occurrence, intermittent, seasonal, or peakload need).
   
   
   If the employer is represented by an attorney, the attorney must file a Notice of Appearance (Form G-28) with the application package
   
   
2. The SWA will review each application for completeness and instruct the employer on recruitment requirements, appropriateness of the wages and working conditions offered and refers qualified candidates to the employer for interviews.
   
   
3. The employer will then prepare a recruitment report summarizing the results of the effort. This recruitment report must be signed by the employer and include the following information:
   • Identification of each recruitment source by name;
     
     
   • The name, address, telephone number, and resume (if provided) of each U.S. worker who applied for the job; and
     
     
   • Explanation of the lawful job-related reason(s) for not hiring each U.S. worker.
   
   
   
4. When evaluated, applications for certification shall be forwarded by the local SWA to the appropriate ETA National Processing Center (NPC).
   
   
5. 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
   
   
   
6. 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.
   
   
7. Because the DOL decision is only an advisory to USCIS, there is no appeal process within the DOL for denial for H-2B applications. Such appeals must be filed with the USCIS.
   
   
8. 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.

Training Materials

H-2B Stakeholder Factsheet
Presentation for Employers Filing H-2B Applications (pdf version here)
H-2B Stakeholder Filing Tips
Presentation for Employers in the Entertainment Industry Filing H-2B Applications (pdf version here)
Presentation for Employers in the Forestry Industry Filing H-2B Applications (pdf version here)

Forms & Instructions

Form ETA 750
Instructions for Form ETA 750

Program Regulations & FAQs

20 CFR 655.200 - .499
Training and Employment Guidance Letter 27-06
Training and Employment Guidance Letter 21-06, Change 1
Training and Employment Guidance Letter 21-06
Training and Employment Guidance Letter 31-05