H-2B Overview

The H-2B nonimmigrant program permits employers to hire foreign national 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 H-2B status during each US Citizenship and Immigration Services (USCIS) fiscal year (October through September), with one half of the numbers (33,000) reserved for the first and last six months of this fiscal year. The process for obtaining H-2B certification from the US Department of Labor (DOL) is similar to, but less extensive and time consuming, than permanent labor certification for a green card. After DOL certification is obtained the H-2B petition identifying the intended workers needs to be filed and approved by the USCIS.

Proving a temporary need is an essential element of H-2B processing. The need for services must be temporary in nature for one year or less. Practically, most employers limit their requests to periods of 10 months or less because DOL has taken the position that requests for services that will last for more than 10 months receive additional scrutiny. The employer's need cannot be ongoing or continuous.

• "One-time Occurrence" relates a temporary need for workers that will not recur again in the foreseeable future.
• "Seasonal" temporary needs are generally connected to the changing seasons and predictable in nature.
• "Peak Load" temporary needs relate to a short term demand to supplement an employer's permanent staff already employed to perform the services.
• "Intermittent" temporary needs relate to occasional or intermittent situations requiring temporary workers, and no permanent workers are generally employed.

Specific documentation that would serve to prove a temporary need would depend on the industry. For example, in the hospitality industry occupancy reports often are used to show a seasonal and/or peak load need.

Department of Labor Processing

Employers may file requests for H-2B certifications no more than 120 days before certification is needed. The State Workforce Agencies (SWAs) have been instructed to return H-2B certification applications filed more than 120 days before the worker is needed. The certification application may request certification of multiple positions (i.e. 20 welders) that are the same in terms of job duties, geographic location of the employment, and period of employment.

The SWA reviews applications to determine whether the offered salary is at or above the prevailing wage and whether the requirements for the position are unduly restrictive. The SWA instructs employers to place a three-day advertisement in an appropriate newspaper or professional journal and lists the job in its state job bank system for 10 days. The SWA forwards to the employer or employer representative the resumes and application letters that it receives in response to the advertisements along with resumes for workers in its active unemployment files. The employer must interview qualified applicants and provide the SWA with a detailed description of the results of recruitment along with the original tear sheets for the newspaper advertisements. If the SWA is satisfied that the employer has conducted an adequate test of the labor market, it forwards the application to the DOL.

The DOL reviews temporary labor certifications to determine whether a U.S. worker is available for the temporary position and whether the foreign national's employment would adversely affect the wages and working conditions of similarly employed U.S. workers. After DOL reviews it will certify eligible applications and forward them to the employer.

US Citizenship and Immigration Services Processing

The employer then files a petition with USCIS indicating the foreign nationals who will work under the approved certification. In addition to identifying the specific employees the H-2B petition must include evidence that the employees meet the requirements (if any) for the position. Premium processing is available to expedite the processing of the petition with a 15 day guarantee.

H-2B petitions with unnamed employees may be filed only in emergent situations, and appropriate documentation. Due to the annual cap, USCIS has become extremely cautious in approving applications for unnamed employees and will often reduce the number of approvals to the number of workers actually listed on the petition.

Visa Processing

After the approval of the H-2B petition by USCIS, the employees will obtain H-2B visas from the U.S. Embassy or Consulate. In limited circumstances, employers may also substitute individuals named on the approved H-2B petition with other workers who also meet the requirements. Upon arrival, they will be admitted to the U.S. for the duration of the H-2B petition approval. Extensions and changes of H-2B employers are possible up to a three-year maximum period of stay in the U.S.