H-2B Temporary Worker

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to employ foreign nationals in the United States in temporary nonagricultural positions.  Congress has set the H-2B cap at 66,000 per fiscal year, allocating 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30).  Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.

Who qualifies?

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program. Effective Jan. 19, 2019, nationals from the following countries are eligible to participate in the H-2B program:

A petitioner seeking to employ foreign nationals pursuant to H-2B nonimmigrant classification must establish that:

• There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
• Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
• Its need for the prospective worker’s services or labor is temporary.

The employer’s job opportunity must be:

• temporary (nine (9) months or less, except one-time occurrences),
• full-time (35 or more hours per week), and
• non-agricultural employment within a specified area(s) of intended employment.

How is temporary defined?

The employer’s need is considered temporary if it is a:

• One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
  • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; and
  • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future.

OR

• Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
  • Traditionally tied to a season of the year by an event or pattern; and
  • Of a recurring nature.

OR

• Peakload need – A petitioner claiming a peakload need must show that it:
  • Regularly employs permanent workers to perform the services or labor at the place of employment;
  • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
  • The temporary additions to staff will not become part of the employer’s regular operation.

  OR

• Intermittent need – A petitioner claiming an intermittent need must show that it:
  • Has not employed permanent or full-time workers to perform the services or labor; and
  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

How does an employer apply?

• Step 1: Petitioner applies for and receives temporary labor certification from the DOL.
• Step 2: Petitioner submits Form I-129 to USCIS.
• Step 3: Prospective workers outside the United States apply for visa and/or admission.

How does an employer apply for temporary labor certification?

1. Obtain a Prevailing Wage Determination (“PWD”) – at least 60 calendar days before it is needed. Obtain a PWD from the National Prevailing Wage Center (“NPWC”) using the Application for Prevailing Wage Determination (ETA Form 9141). The DOL processing times vary, but DOL takes at least 60 to 90 days to issue a PWD.
2. File a job order and H-2B application – 90 to 75 days prior to the date of need. File a job order with the State Workforce Agency (“SWA”) and submit the H-2B application (ETA Form 9142B) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (“Chicago NPC”). USCIS processing time is 1 to 3 months regular processing, or 15 days with premium processing.

How and when does an employer file the application with the Chicago NPC?

An employer should submit its application 90-75 calendar days before the start date of need.  The employer submits the job order to the SWA and submits the H-2B application package to the Chicago NPC.

What happens next?

• The SWA reviews the job order for compliance with program requirements as soon as possible but no later than six (6) business days of receipt.
• The Chicago NPC reviews the H-2B application and job order for compliance with program requirements within seven (7) business days of receipt.
• Within seven (7) business days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer’s application and/ or job order.
  • A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/ or job order.
  • Each notification will also provide next steps for the employer to take.
• Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:
  • placing newspaper advertisements,
  • contacting former U.S. workers,
  • contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer’s current employees, and
  • conducting any additional recruitment, if directed by the Certifying Officer.
  • The Certifying Officer in the Notice of Acceptance will specify a date for the employer’s initial recruitment report.
  • The Certifying Officer will place a copy of the SWA job order on the iCERT Public Job Registry.

• After receipt of the initial recruitment report the Chicago NPC will determine whether to certify or deny the application and issue the final determination.
  • The final determination will be sent to the employer and, if applicable, the employer’s attorney or agent by means normally assuring next day delivery.
  • The employer completes the footer of Appendix B and submits the certified ETA Form 9142B with a copy of Appendix B with the petition package to the USCIS Service Center. The original Appendix B is retained in the employer’s retention file.
  • The employer is obligated to continue to update the recruitment report and prepare a final recruitment report.
  • The updated report need not be submitted to DOL, but must be retained in the employer’s retention file and made available in the event of a post-certification audit or upon request by the Department.
  • The employer must also continue to accept referrals of U.S. applicants until 21 days before the date of need.
  • Employers may request redeterminations from the Certifying Officer on partial certifications and denials.
  • Employers may appeal for administrative review of Notices of Deficiency, partial certifications, denials of labor certification, denials of redetermination requests, denials of modified applications or job orders and denials of extension requests.