The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor 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 non-immigrants. Homeland Security regulations require the intending employer first to apply for a temporary labor certification from the Secretary of Labor advising the Department of Homeland Security's United States Citizenship and Immigration Services (USCIS) as to whether qualified U.S. workers are available and whether the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers, or a notice that such certification cannot be made, prior to filing an H-2B visa petition with USCIS. There is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30).The Department of Labor will continue to review and process all H-2B applications on a first in, first out basis, regardless of whether the 66,000 visa cap has been reached.
Employers seeking to employ temporary H-2B workers must file two (2) originals of the Form ETA 750, Part A, directly with the State Workforce Agency (SWA) serving the area(s) of intended employment. Once reviewed, the SWA will send the complete application to the Chicago National Processing Center (NPC). This process, however, does not apply to employer applications for boilermakers, entertainers, logging and professional team sports, who must abide by special filing instructions. When filing an application with the SWA, 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 alien workers as long as each worker is to perform the same type of work on the same terms and conditions, in the same occupation, in the same area(s) of intended employment during the same period of time. 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.
An H-2B temporary labor certification is advisory to USCIS and, where the employer is notified by the Chicago NPC Certifying Officer that certification is denied or cannot be made, the employer may elect to re-file the application with additional information with the SWA, or may submit countervailing evidence directly to USCIS. There is no provision for reconsideration or appeal of the determination made by the DOL through the Chicago NPC Certifying Officer.
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 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. Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified. The period of the petitioner'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. If there are unforeseen circumstances where the employer's need exceeds one year, a new application for temporary labor certification is required for each period beyond one year. However, an employer's seasonal or peakload need of longer than 10 months, which is of a recurring nature, will not be accepted.