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H-2B Labor Certification – The First Step in the Process for Temporary Employment of Foreign Nationals in the United States

Many U.S. employers that have seasonal fluctuations in their staff have difficulty filling those positions with U.S. workers. These employers often turn to foreign nationals as a ready source of labor. The H-2B labor certification program is the first step for those U.S. nonagricultural employers who anticipate a shortage of domestic workers to establish the need to bring temporary nonimmigrant foreign workers into the U.S. H-2B eligibility requires that the job and the U.S. employer's need for the foreign worker be of a temporary nature. An H-2B temporary non-agricultural worker is a foreign national who is coming to the U.S. to perform temporary services or labor where qualified U.S. workers capable of performing such services or labor are not available. The need must be for one year or less and can be either a one-time occurrence, seasonal, peak load or intermittent. Temporary employment should not be confused with part-time employment which does not qualify for temporary (or permanent) labor certification.

Qualifying Criteria for H-2B Labor Certification: The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must be temporary. A job opportunity is considered temporary under the H-2B classification only if the employer's need for the duties to be performed are 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.

Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified. The period of the petitioner'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. If there are unforeseen circumstances where the employer's need exceeds one year, a new application for temporary labor certification is required for each period beyond one year. However, an employer's seasonal or peak load need of longer than 10 months, which is of a recurring nature, will not be accepted.

Temporary Employment: To qualify as temporary employment the U.S. employer's need for the services or labor must meet one of four definitions.

A one-time occurrence - (a) The employer has not employed workers to perform the services or labor in the past and the employer will not need workers to perform the services or labor in the future. (b)The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

Seasonal need - The employer must establish that the services or labor are traditionally tied to a season of the year by a temporary event or pattern and are of a recurring nature.

Peak load need - The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands, with temporary employees who will not become a part of the regular operations.

Intermittent need - The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers for short periods.

Validity Period: The H-2B Labor Certification shall be valid for the period of employment indicated on the application form. However, the validity period cannot exceed 364 days. The employer may apply for re-certification for an additional two years, but on each new application, the employer must justify the reason for the renewal request. H-2B certification is not transferable from one employer to another. Certification is issued only or a specific job opportunity with a specific employer, for a specific number of workers, and for a specific employment period.

Basic Process: With the current process the employer files a labor certification application, Form ETA Form 750 Part A, for temporary employment, together with documentation to support the employer's temporary need, with the Foreign Labor Certification (FLC) Unit of the State Workforce Agency (SWA). The form and documentation must be filed in duplicate with original signatures on the ETA 750 Part A. Temporary labor certification applications should be filed at least 60 days prior to the date of need,. but they cannot be filed more than 120 days prior to the date of need. Any applications filed too early will be returned to the employer. The SWA staff will issue a priority date and review the application. The employer will be notified of any additions or corrections that have to be made to the application. SWA staff then notifies the employer to place a job advertisement in a newspaper of general circulation or to place the job advertisement in a professional or ethnic publication as appropriate for the occupation. The recruitment period is a minimum of ten days or 20 days, depending on the occupation. At the same time the SWA will place a 10 day job order with the state employment department. During this period the employer is required to consider all qualified US applicants. The employer can reject applicants only for lawful, job-related reasons. At the end of the recruitment period the employer must submit documentation of the recruitment results. When the results are received, SWA staff will forward the application to the US Department of Labor for final processing.

With the adoption of new regulations in December 2008 by both the USCIS and the Department of Labor the temporary labor certification process will change over the next year. The process will follow the format adopted for PERM applications and become an attestation process. (We will write more about the upcoming changes in a future article.)

Required Wages: U.S. immigration law, the Immigration and Nationality Act (INA), requires that the wages paid to foreign national workers be at least the higher of the actual wage rate paid to all other workers with similar experiences and qualifications for the specific employment in question (the actual wage) or the prevailing wage rate for the occupational classification in the area of intended employment (the prevailing wage). The INA does not preclude the employer from paying foreign national workers more than the higher of the actual wage or the prevailing wage.

Required time frame for filing an H-2B temporary labor certification application: Employers are advised to file requests for H-2B certifications no more than 120 days but at least 60 days before certification is needed. H-2B certification applications filed more than 120 days before the worker is needed will be returned.

Conclusion: If you are a foreign national that intends to work in the U.S. temporarily, or you are a U.S.employer that needs temporary non-agricultural workers, the H-2B classification may be the best option available to you. The H-2B visa is for foreign nationals who are coming temporarily to the United States to perform non-agricultural service or labor of a temporary or seasonal nature (graduates of medical schools coming to provide medical services are excluded from the H-2B category). The U.S. employer must porve that there if unemployed persons capable of performing such work cannot be found in the United States. However the H-2B visa classification requires having a temporary labor certification issued by the Department of Labor or the Government of Guam, or a notice from one of these agencies that such a certification cannot be made, prior to the filing of a petition with DHS to confer H-2B status.

If you are an employer who has questions regarding Labor Certification or need assistance with the H-2B filing, call ExpressH2B. ExpressH2B attorneys would be happy to assist you.