25 April 2007
Update on H-2B Temporary Workers
By Reuben S. Seguritan, Esq.
On April 20, 2007, the Department of Labor issued new
regulations concerning the processing of an H-2B
petition. The H-2B visa category is for non-agricultural
foreign workers who enter the US on a temporary basis.
There are two important aspects to the H-2B category.
First, the employment of the foreign worker must be
temporary in nature. This means the job itself must be
“one-time, peak load, seasonal or intermittent.
The other important aspect of the H-2B category is that
there should be no available US qualified worker for the
job and that the job will not adversely affect the
working conditions of similarly employed US workers.
Considering the visa retrogression and the critical
shortage at present, the H-2B can be used for the
recruitment of workers in hotels, parks, casinos,
country clubs and other establishments that need
Temporary Nature of the Job
The Regulation explained the standards for determining
the temporary nature of the job opportunity. It
emphasized that what is controlling is the nature of the
employer’s need, and not the nature of the duties. Thus,
the question does not turn on whether the job is
permanent or temporary. The Regulation added that only
full-time employment, not part-time employment, can be
The Regulation emphasized that the period of the H-2B
petitioner’s need must be a year
or less. In the event of “unforeseen circumstances” that
creates a need of more than a year, a new temporary
labor certification application must be filed. A
recurring “seasonal” or “peakload” need that exceeds 10
months does not qualify either.
Lastly, the Regulation further requires the employer’s
need for temporary non-agricultural services or labor
must meet the following standards: (a) a one-time
occurrence; (b) a seasonal need; (c) a peakload need;
and (d) an intermittent need.
Labor Certification Requirement
To conform to the second aspect of the H-2B category
mentioned above, the petitioner must file a labor
certification application with the local State Workforce
Agency (SWA) on two (2) originals of ETA Form 750 Part
This ETA form could be used for more than one job
opening and for the same rate of pay. The certification
pertains to the employer (not the alien beneficiary/ies)
and may not be transferred to another employer.
According to the Regulation, if the application includes
worksite locations within a Metropolitan Statistical
Area covering several SWAs, the employer may submit a
single application to the SWA where the employment will
After review, the SWA will forward the ETA Form 750 Part
A to the appropriate National Processing Center (NPC)
where a final determination will be made.
The labor certification is issued when the DOL finds
that there are no US qualified workers for the job and
that similarly situated US workers will not be adversely
affected by the hiring of foreign workers. Otherwise,
the DOL issues a denial.
Technically, a labor certification denial does not bar
the filing of the H-2B petition because the decision of
the SWA on the labor certification request is merely
advisory. The USCIS, however, generally heeds the DOL
||REUBEN S. SEGURITAN has been practicing law for
over 30 years. He was former immigration editor and is author of a
book on immigrant experiences. He frequently speaks on immigrant
issues and for his advocacy efforts he was the recipient of two
presidential awards by President Ramos and an award by the
Commission on Filipinos Overseas. He previously taught business law
and international politics. For further information, you may call
him at 212 695 5281 or log on to his website at www.seguritan.com