H-2B Temporary Non-Agricultural Workers
The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. The H-2B visa classification requires the Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B non-immigrants. Homeland Security regulations require that, except for Guam, the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will review and process all H-2B applications on a first in, first out basis.
Employers seeking to employ temporary H-2B workers must file an ETA Form 9142, and its recruitment report to the Chicago National Processing Center (NPC). When filing an application with the Chicago NPC, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment during the same period of employment. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another.
The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must also be temporary. A job opportunity is considered temporary under the H-2B classification if the employer’s need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer’s need, not the nature of the duties that is controlling. Except where the employer’s need is based on a one-time occurrence, the Secretary of Labor will, absent extenuating circumstances, deny an Application for Temporary Employment Certification where the employer has a recurring seasonal or peakload need lasting longer than 10 months.
Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified.