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Applying for an H-2B Visa? Check H-2B Filing Tips for Smooth and Fast Visa Processing

 

The H-2B visa category is a non-immigrant visa which allows foreign nationals to temporarily enter the US to engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. The H-2B visa requires a temporary labor certification from the US Department of Labor (DOL) to show that there are no qualified US workers available and the foreign national’s employment in the US will not adversely affect the wages and working conditions of similarly employed US workers. The H-2B labor certification program is the first step for those nonagricultural US employers who anticipate a shortage of domestic workers. H-2B visa eligibility requires that the job and the US employer's need for the foreign worker be of a temporary nature. The basic form used for the temporary labor certification is DOL Form ETA 750, Application for Alien Employment Certification, Part A.

 

In an endeavor to provide better and more effective service to our clients and readers, we have designed this article, which will layout important Office of Foreign Labor Certification’s (OFLC) H-2B filing tips. These tips are based on H-2B applications processed by the Atlanta and Chicago National Processing Centers (NPCs) over the past year.

 

H-2B Labor Certification Application Checklist: As noted above, every temporary labor certification application filed by a US employer to support an H-2B visa classification must include:

1. Two (2) copies of ETA Form 750, Part A, with original signatures and dated by the employer. Both copies must be double-sided.
   NOTE: ETA Form, Part B, is not required.
2. Documentation showing any efforts the employer has engaged in to advertise the position(s) and recruit US workers prior to filing the H-2B application;
3. A detailed statement of the temporary need. This must be on the employer's letterhead and signed by the employer; and
4. Evidence and documentation that supports the category temporary need (i.e., one-time occurrence, intermittent, seasonal, or peak load need).
5. NOTE: If the employer is represented by an attorney, the attorney must file a Notice of Appearance (Form G-28) with the application package.


ETA Form 750, Part A
6. Make sure that the ETA Form 750, Part A, is completed in its entirety (i.e., all boxes must be completed or be marked as “not applicable” or “n/a”);
7. Must be legible (hand written applications are often difficult to read);
8. Must have original signatures and dates, No fax copies;
9. Must be double-sided;
10. Include all physical locations for applications involving multiple work-sites;
11. Provide a clear and complete description of the job opportunity;
12. Job duties must be normal to the occupation (not just the employer) and must not be written in a manner that inhibits the recruitment of US workers;
13. Work hours must be normal to the occupation (not just the employer);
14. Wage offer must be at least the prevailing wage for the occupation (as determined by the State Workforce Agency (SWA) for the location of the job);
15. Must not have any restrictive requirements, i.e., must state actual minimum requirements for the job and avoid excessive experience or education requirements;
16. Documentation to support business necessity for any restrictive requirements (e.g., support foreign language requirement or combination of duties);
17. Multiple workers may be requested as long as all workers are performing the same duties, are in the same occupation, receiving the same pay, and working for the same period of time;
18. Total number of workers requested and period of need in Box 18 must be specified in all advertisements and in the SWA job order; and
19. If employer's agent files, the "Authorization of Agent of Employer" portion of the ETA Form 750 must be signed.

 

NOTE: One important tip to keep in mind is that all information on the ETA Form 750, Part A, must be consistent with the temporary need statement, job advertisements, SWA job order, and supporting documentation. And remember, the period of need and number of workers being requested must be disclosed in all advertisements.

 

Temporary Need Statement: When a US employer offers a job to a foreign national under the H-2B visa category, he must be able to prove that the job opportunity is within the US and that the job opportunity is temporary in nature.

 

NOTE: A job opportunity is considered temporary under the H-2B visa classification only 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 are controlling.

 

The employer is required to submit a statement showing the temporariness of the job opportunity offered to the foreign national.

 

The temporary need statement:

1. Must be submitted on employer's letterhead with original signature - it cannot be signed by the agent or attorney;
2. Must clearly describe the nature of the employer's business activity and schedule of operations each year;
3. Must clearly explain why the job opportunity and number of workers being requested reflect a temporary need;
4. Must explain how the employer's request for the services or labor meets the standard of on of the temporary need categories: a one-time occurrence, intermittent need, seasonal need, or peak load need;
5. While not required, information on the local labor market and a narrative summary of previous efforts to recruit US workers would also be helpful; and
6. As noted above, information must be consistent with what is disclosed on the ETA Form 750, Part A.

 

Acceptable Documentation to Support Seasonal and Peak Load Needs: While not exhaustive, the following list contains examples of evidence or documentation that will support the most common temporary categories: seasonal and peak load need include.
7. Signed work contracts correlating to the period of need on the ETA 750, Part A, Box 18b for the coming season;
8. Letters of intent from clients correlating to the period of need on the ETA 750, Part A, Box 18b for the coming season;
9. Monthly invoices from previous calendar year(s) correlating to the period of need on the ETA 750, Part A, Box 18b;
10. Annualized or multi-year work contracts/agreements supplemented with signed work contracts specifying the actual dates when work will commence and end during each year of service;

 

NOTE: Documentation identified above submitted from previous calendar year(s) must clearly show work performed for each month during the period of need on the ETA Form 750.
11. Summarized monthly payroll reports for a minimum of one previous calendar year that identifies, for each occupation and separately for full-time permanent and temporary employment, the following:
    1. Total number of workers or staff employed
    2. Total hours worked
    3. Total earnings received

     

    NOTE: Payroll reports must be signed by the employer attesting that the information was compiled from the employer's actual accounting records or system.

 

Documentation Deemed Insufficient to Support Temporary Need: Not all documentation can be used to show the temporary nature of the position offered. The following are the examples of documentation that are not sufficient to justify an employer's need:

1. Work contracts with no clear start or termination date;
2. Work contracts specifying job duties that are not consistent with those listed on the ETA Form 750;
3. Applications supported solely by weather charts, event calendars, hotel occupancy rates, or annual/quarterly tax reports (e.g., IRS Form 941);
4. Applications supported solely by staffing charts, graphs, or other documentation, which do not correspond with the requested period of need;
5. News articles regarding labor shortages, however severe; and
6. Unsigned proposals of services to be provided (i.e., unexecuted work contracts).

 

Other Important H-2B Filing Tips: When filing an application for temporary labor certification the employer must submit all documentation at the time of filing with the SWA. The SWA will forward the application package to the NPC for adjudication. The application will be judged by the NPC based on the documentation enclosed when it is received by the NPC, If there is no supporting documentation included the application will be judged on its own merit. Unless otherwise directed by the Certifying Officer, the NPC will not accept documentation submitted directly from the employer, agent, or attorney.

 

If the SWA or the NPC requests modifications to the ETA Form 750, those modifications to by employers/agents/attorneys will be accepted for processing as long as each modification is initialed and dated on the original form.

 

Employers should file at least 60 calendar days, but cannot file more than 120 calendar days, prior to the date of need. Given the tight timeframe employers should plan their filing and recruitment accordingly.

 

Employers should provide a copy of the letter contacting the local union regarding the job opportunity if such contact is appropriate for the occupation and is customary in the industry. Along with the contact letter the employer should include any response received from the union.

 

Because of the time sensitive nature of the H-2B labor certification process the recruitment report must be submitted timely and must address every worker who applied. The recruitment report must also include the outcome of each contact and may include copies of the applicant resumes. As with the Form ETA750, the recruitment report must be signed by the employer - not the attorney/agent.

 

The recruitment report must include proof of the recruitment efforts and advertisements placed for the position. Therefore you must submit the actual tear sheet pages from the newspaper which ran the ads. Do not cut the ads out of the newspaper and paste to a blank page, and do not send photocopies that cannot be clearly read and understood. You may also submit "Affidavits of Publication" from the publication itself to document advertising in lieu of submitting the tear sheets.

 

Conclusion: The H-2B is currently one of the most sought-after non-immigrant visa categories. It assists US employers meet their temporary and seasonal employment problems, especially when they are unable to find qualified US workers to perform such services. And the H-2B visa category provides a great opportunity for foreign workers who want to work temporarily in the US to do so.

 

However, while the H-2B visa allows employers to fill their temporary needs, the H-2B visa process can be complicated, exhausting, and often frustrating. It is not easy to navigate the myriad of rules established by the DOL and the USCIS, and it therefore requires extreme care and attention to detail in filing all the necessary paperwork and supporting documentation.

 

ExpressH2B Attorneys have been training and helping foreign nationals put together the correct documentation for a visa interview. In our experience, the approval rate of H-2B visas for foreign nationals with the correct documentation is very high. If you are a foreign national seeking advice on visa denials consult an ExpressH2B attorney.