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Employment Law Guide
Chapter: Temporary Nonagricultural Workers (H-2B Visas)
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Updated: September 2005
Sections 101(a)(15)(H)(ii)(b) and 214(c)(1),(c)(14),
and (g)(1) and (g)(9) of the Immigration and Nationality Act of 1952, as
amended and 20 CFR Part 655 Subparts A and 8 CFR Part 214.2(h)(6)
The regulations of the U.S. Citizenship and Immigration Service (USCIS),
8 CFR Part 214.2(h)(6), apply to employers who wish to import temporary
nonagricultural workers classified under Section 101(a)(15)(H)(ii)(b) to
work in temporary jobs in the United States. Section 214(c)(1) of the
Immigration and Nationality Act (INA) requires the Department of
Homeland Security (DHS) to consult with the Department of Labor before
determining whether any worker can be admitted under Section 101(a)(15)(H)(ii)(b).
Section 214(g)(1) of the INA provides that the number of aliens during
any fiscal year who can be issued visas or provided nonimmigrant status
under Section 101(a)(15)(H)(ii)(b) cannot exceed 66,000. “Returning
workers” who counted toward the H-2B cap in prior years are excluded
from the cap from October 1, 2004 through September 30, 2006.
USCIS regulations require that employers who file H-2B petitions with
the USCIS (except for temporary employment on Guam) must include a
certification from the Department of Labor stating that qualified
workers are not available in the U.S. and that the foreign worker’s
employment will not adversely affect wages and working conditions of
similarly employed U.S. workers. If the Department of Labor notified the
employer that certification cannot be made, the employer may submit
countervailing evidence to USCIS.
To obtain certification, employers must file applications for
certification of temporary nonagricultural jobs on Part A of an
Application for Alien Employment Certification,
Form ETA
750, with the
State Workforce Agency (SWA) serving the geographic area where the
alien will work. To receive a timely determination, the employer should
apply at least 60 but no more than 120 days before the workers are
needed.
The employment for which certification is requested must be for less
than one year, and the need for the service or labor shall be a one-time
occurrence, seasonal need, peak load need, or intermittent need.
General Administrative Letter No. I-95, dated November 10, 1994,
(amended by
General Administrative Letter No. I-97 Change 1, dated December 22,
1997) states the requirements for obtaining temporary nonagricultural
labor certifications.
Other detailed information may also be found on the
H-2B Certification for Temporary Nonagricultural Work page
of the
Employment and Training Administration’s Web site.
After receiving an application, the SWA prepares a job order and places
it into the Employment Service System for 10 days. The employer, after filing
the application with the SWA, advertises the job opportunity in a newspaper of
general circulation for three consecutive days, or in a professional, trade, or
ethnic publication, whichever is most appropriate for the occupation and most
likely to bring responses from U.S. workers.
The employer must also document that unions and other recruitment
sources, appropriate for the occupation and customary to the industry, could
not refer qualified U.S workers. After the employer completes the required
recruitment, it must submit a recruitment report that explains the lawful
job-related reasons for not hiring each U.S. worker that applied.
The employer seeking to employ H-2B workers must attest that the workers will
be paid at least the prevailing wage for the occupation in the area of intended
employment. In addition, worker-protection provisions that apply to U.S. workers (e.g., the Fair
Labor Standards Act) cover nonimmigrant H-2B workers. Workers may file
complaints under these general worker protection laws with the
local Wage and Hour Division offices.
Employers may obtain information on how to apply for a temporary
nonagricultural labor certification, including application forms and
directives that contain prescribed procedural requirements, from the
SWAs or the national office of the Employment and Training
Administration. SWA staffs can help employers fill out application
forms, place job orders, and draft advertisements that meet prescribed
requirements.
The Save Our Small and Seasonal Businesses Act of 2005 (Act) authorized,
effective October 1, 2005, the imposition of such administrative
remedies (including civil monetary penalties in an amount not to exceed
$10,000 per violation) as DHS determines to be appropriate if an
employer is found to have committed a substantial failure to meet any of
the conditions of the petition or a willful misrepresentation of a
material fact in such petition. The Act permits DHS to delegate to the
Secretary of Labor the authority to impose sanctions. The Act also
authorizes DHS to deny petitions filed with respect to these employers
for a period of one to five years.
Various other laws, such as workers’ compensation, tax (unemployment
insurance, local, state, and federal,) and the Family and Medical Leave
Act, may apply to the employment of these workers.
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The Employment Law Guide is offered as a public resource. It
does not create new legal obligations and it is not a substitute for the U.S.
Code, Federal Register, and Code of Federal Regulations as the official sources
of applicable law. Every effort has been made to ensure that the information
provided is complete and accurate as of the time of publication, and this will
continue. Later versions of this Guide will be offered at
www.dol.gov/compliance or by calling our Toll-Free
Help Line at 1-866-4-USA-DOL (1-866-487-2365). |
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