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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:
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:
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.
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.
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:
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.
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