U.S. Immigration Q and A

25 April 2007 


Update on H-2B Temporary Workers

By Reuben S. Seguritan, Esq.

Statue of Liberty 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 help.

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 certified.

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 A.

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 begin.

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 recommendation.  

Reuben S. Seguritan 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
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