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.
New H-2b Processing Regulations
On December 19, 2008, the Office of the Federal Register published the Final Rule on H-2B Temporary Non-agricultural Employment. The Final Rule takes effect January 18, 2009. Certain aspects of the Final Rule will allow for a transition period.
There are no changes for applications filed before January 18, 2009. The Employment Security Department (ESD) continues to process active H-2B applications.
What's new after January 18, 2009? Employers will complete recruitment before submitting the H-2B application, ETA Form 9142, to the Department of Labor's National Processing Center (NPC).
Prevailing Wage Determination (PWD):
• Before starting recruitment, employers must obtain a PWD.
• If workers are needed before October 1, 2009, submit a prevailing wage request to ESD using the state's current prevailing wage request form.
• If workers are needed after October 1, 2009, submit a prevailing wage request to the NPC using ETA Form 9141.
• Employers should submit an acceptable job order to ESD to post for 30 days. The job order should not be posted more that 120 days before workers are needed.
• Employer must provide NPC with documentation of the State Workforce Agency job order.
• ESD verifies employment eligibility of all referrals from the job order using the 1-9 form.
• Referrals made by ESD will be from a local WorkSource center in the areas of intended employment.
• While the job order is open, the employer will publish a local newspaper advertisement that meets all requirements, on two separate days,including a Sunday.
• If party to a collective bargaining agreement, the employer should contact the local union as a recruitment source.
• Employer should prepare, sign and date a written recruitment report that meets all requirements and submit it to NPC with the application. The address will be posted at: http://www.foreignlaborcert.doleta.gov/.
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.
Please note per special regulations, the Fish Roe processors are not subject to the quota and H-2b application may be filed at any time for any number of applicants, please call us or write us for additional information for Fish Roe Processors.
For general information about the H-2b program, visit http://www.foreignlaborcert.doleta.gov/