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Defining the Word Temporary for the H2B Visa Workers


The H2B visa allows U.S. employers to hire skilled or unskilled foreign workers in temporary or seasonal non-agricultural occupations. The employer has to prove that there are no qualified, available U.S. workers to fill the existing job opening. The H2B visa may not be used as a stop-gap measure to fill the employer's regular permanent positions vacant as result of a severe labor shortage in the geographic area of employment. Temporary employment should not be confused with part-time employment which does not qualify for temporary labor certification.


It often happens that employers get confused about the temporariness of the occupation when it comes to hire foreign workers to meet their temporary or seasonal work requirement. In this article we will discuss the meaning of the word 'temporary' under the H2B visa program.


Meaning Of Temporary Work Under the H2B Visa Program


A regulation proposed by United States Citizenship and Immigration Services (USCIS) providing that temporary work under the H2B visa program generally . . . will be limited to one year or less, but . . . could last up to 3 years is based on a permissible reading of 8 U.S.C. § 1101(a)(15)(H)(ii)(b) and is consistent with the 1987 opinion of this Office addressing the meaning of temporary work under 8 U.S.C. § 1101(a)(15)(H)(ii)(a).


Memorandum Opinion for the Acting General Counsel Department of Homeland Security


Section 1101(a)(15)(H)(ii)(b) permits foreign nationals to obtain H2B visas to come temporarily to the United States to perform temporary services or labor if certain conditions are met. The regulation applicable to H2B visas defines temporary work to mean employment . . . where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year.


The regulation applicable to H2B visas defines temporary work as any job in which the petitioner's need for the duties to be performed by the employee(s) is temporary, whether or not the underlying job can be described as permanent or temporary, the employer's need must be a year or less although there may be extraordinary circumstances where the temporary services or labor might last longer than one year.


United States Citizenship and Immigration Services (USCIS) proposes to revise the regulation governing H2B visas. The new H2B regulation would provide that employment is of a temporary nature when the employer needs a worker for a limited period of time. The employer must establish that the need for the employee will end in the near, definable future.


USCIS' proposed rule is based on a permissible reading of the statute. Section 1101 does not define temporary work for purposes of H2B visas, nor does it indicate how long a position may last and still qualify as temporary work. The statute simply provides that an alien may come temporarily into the United States to perform services . . . of a temporary or seasonal nature under an H2B visa. In its ordinary sense, temporary means lasting for a time only; existing or continuing for a limited time.


The legislative history of the statute is silent about the expected duration of temporary work. Although USCIS' proposed rule specifies a time frame for the duration of temporary workers under an H2B visa program-generally . . . one year or less, but . . . up to 3 years-it emphasizes that the focus is on the employer's need for the worker and whether that need is temporary. The proposed H2B rule would make even clearer than the current rule that employment will not be considered temporary unless it is restricted to a limited period of time and the employer's need for the employee will end in the near, definable future.


The proposed rule's specification of a time frame for temporary workers under H2B-generally . . . one year or less, but . . . up to 3 years-is also within USCIS's discretion absent clear congressional intent to the contrary. Employment for up to three years may still be considered to exist or continue for a limited time, as long as the employer's need for the worker is temporary. Although the word temporary is commonly applied to periods of a year or less, it has also been applied with some frequency to periods of up to three years.


Although the current and the proposed rules both indicate that temporary work ordinarily would last one year or less, the proposed rule differs slightly from the current one in two respects: first, the current rule (but not the proposed one) specifies that the duration will exceed one year only in extraordinary circumstances; and second, the proposed rule (but not the current one) sets an upper limit of three years in the case of a one-time event. These minor differences are within the scope of USCIS' interpretive discretion. Such changes are permissible if USCIS adequately explains the reasons for change of policy.


The current H2B rules require that employers provide evidence of extraordinary circumstances in order to employ temporary workers on a project longer than one year is thus impractical because it does not correspond to a prevalent need for H2B workers. USCIS thus could reasonably conclude that a more flexible rule that generally limits temporary work to one year but allows it to last up to three years better comports with the nature of temporary work in the H2B context.




Thus, USCIS has defined temporary work for H2B visa in 8 U.S.C. § 1101(a)(15)(H)(ii)(b) as employment where the employer's need lasts only one year absent extraordinary circumstances.


By regulation, USCIS requires H2B visa petitioners to obtain a certification of the Department of Labor that qualified U.S. workers are not available and the use of non-U.S. workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. To implement that requirement, the Department of Labor has adopted a procedure providing that as a general rule, the period of the employer's need must be 1 year or less, although there may be extraordinary circumstances where the need may be for longer than one year.


Indeed, in the preamble to proposed amendments to the H2B visa regulations, Department of Labor (DOL) has stated that it defers to the Department of Homeland Security (DHS) and will use its definition of temporary need as published in its Final Rule on H2B and thus will consider a position to be temporary as long as the employer's need for the duties to be performed is temporary or finite, regardless of whether the underlying job is temporary or permanent in nature, and as long as that temporary need . . . is less than 3 consecutive years.



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