The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available and when the employment of those foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a program cap of 66,000 visas per year.

On February 21, 2012 the Department of Labor issued a Final Rule on the H-2B program that amended its regulations governing the certification of the employment of nonimmigrant workers performing temporary or seasonal non-agricultural labor or services and the enforcement of the obligations applicable to employers under the H-2B program.  The stated goal of the new regulations is to “ensure that U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.”

Major features of the final rule include the creation a national electronic job registry for all H-2B job orders to improve U.S. worker access to these temporary jobs. The final rule also enhanced recruitment of U.S. workers from across the country, increasing the amount of time for which U.S. workers must be recruited and hired, and requiring the rehiring of former employees when available.  In addition, the Final Rule returned the H-2B program to a certification-based model, rather than an attestation-based model, meaning that an employer must demonstrate – not merely attest – that it was unable to locate sufficient number of U.S. workers.

What kinds of jobs qualify for H-2Bs?

For a foreign worker to be covered by an H-2B visa, the job the employer offers needs three essential criteria:

  • The job and the employer’s need must be one time, seasonal, peak load or intermittent;
  • The job must be for less than one year; and
  • There must be no qualified and willing U.S. workers available for the job.

 

When should an employer file for an H-2B visa?

The Final Rule created a registration process for the employer to prove a legitimate temporary need before the employer is allowed to file an application for temporary employment certification.  The registration is valid for up to three years and employers can recruit and test the labor market during the second and third years of registration without having to again prove their need.

The employer must file the registration no fewer than 120 days and no more than 150 calendar days before the date of initial need.  The registration must be accompanied by supporting documents showing the number of H-2B workers requested and the time period they will be needed.

What are the steps an employer must follow to obtain H-2B certification?

The employer must go through a seven step process to obtain an H-2B visa:

  1. The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) covering the area of proposed employment.
  2. The SWA informs the employer on requirements for recruitment, wage options, and working conditions offered and refers qualified candidates to the employer for interviews. The employer will also be required to advertise the position to demonstrate a lack of availability of American citizen and permanent resident workers.
  3. The employer creates a recruitment report summarizing the results of the effort, including names and addresses of applicants, and reasons for not hiring particular interviewees. The employer must demonstrate that there are no immediately available citizen or permanent resident workers willing to work at the prevailing wage (or the actual wage paid by the employer if higher).
  4. After an evaluation, the SWA will forward the applications to the appropriate National Processing Center (NPC).
  5. The NPC certifying officer (CO) will review the applications. The CO will grant certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
  6. The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS. The Labor Certification Determination and the form I-129 are submitted to the USCIS.
  7. The foreign potential employee must apply for a visa at his or her respective U.S. Consulate.

 
* When filing an Application, the employer and its agents and attorneys must provide copies of any agreements with recruiters engaged in international recruiting. In addition, employer and its agent and attorney must provide the names and locations of sub-contractors hired by the recruiter who will recruit H-2B workers.

**Employers must maintain SWA job postings until 21 days before the date of need

How long is an H-2B visa valid?

The length of stay on an H-2B visa will be granted in increments of up to a year depending on the anticipated length of the employment period. The maximum period of stay in H-2B classification is three years. The visa may be extended in one year increments for a total of three years, but USCIS will often deny extension requests because they question whether a job is really temporary.

Who is eligible/ineligible for an H-2B visa?

Either skilled or unskilled workers may be employed on an H-2B visa. The visa is generally used for entertainers and athletes and who do not meet the requirements of the O and P visa categories. Recently, the H-2B visa has become very popular with professions in the hospitality industry.

The only workers specifically excluded are foreign medical graduates seeking to perform work in medical fields and agricultural workers.

Can job contractors participate?

Participation of job contractors is limited to those with their own genuine temporary need for workers on a temporary seasonal or one-time occurrence basis.  The job contractor and its clients, the end-employers, must continue to declare joint employment, and both must continue to sign Appendix B agreeing to comply with the H-2B terms and conditions.

What documentation must an employer keep on an H-2B worker?

If the worker is self-employed:

  • A contract between the employer and the worker specifying the wages and terms of employment
  • A complete itinerary of the planned employment
  • The employer must retain all documents pertaining to the Application and Registration, the recruitment-related documents, the payroll records, and related documents for 3 years.

If numerous employers are involved:

  • The dates of the proposed employment
  • The name and address of the employers
  • List of locations where the work will be performed

 

How many H-2Bs are granted per year?

Up to 66,000 H-2Bs are granted each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half. The 66,000 limit does not apply to spouses and children and they may enter the US in H-4 status. H-2B workers are only counted against the cap in the first year of the H-2B petition and are not counted when returning for seasonal work or extensions.

What obligations does an employer have in an H-2B case?

  1. The employer must pay an offered wage that equals or exceeds the highest of the prevailing wage or Federal, State, or local minimum wage, and must be paid for the entire employment period certified in the Application.
  2. The employer must pay at least the offered wage free-and-clear, either in cash or in a negotiable instrument payable at par.
  3. The employer must provide, without charge or deposit, all tools, supplies, and equipment needed to perform the job.
  4. The employer is liable under H-2B for reasonable cost of 1) inbound travel, including daily subsistence expenses, for workers who complete 50% of the job order, and 2) outbound travel, including daily subsistence expenses, for workers who work until the end of the job order or are dismissed early.
  5. The employer must guarantee to offer employment for a total number of work hours equal to at least three-fourths of the workdays in every 12-week period (or, for job orders less than 120 days, every 6-week period).
  6. The employer is required to pay or reimburse in the first workweek the full cost of visa and visa-related expenses.

 

Can an employer substitute workers in an H-2B case?

Yes, but only if the petition was approved for unnamed beneficiaries, the petition was for a group or the job does not require education, teaching or experience. The substitutions can be made at a consulate.

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