H-2B VISAS FOR SKILLED WORKERS

H-2B Alien Labor Certification:

H-2B The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services. On April 1, 2006, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act).

The SOS Act allowed USCIS to accept filings beginning April 1, 2006 for workers seeking work start dates as early as October 1, 2006. Although USCIS regulations allow for filings 6 months in advance, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be files more than 120 days in advance of the need the the employee to ensure the accuracy of the labor market test.

What is the H-2B numerical limit set by Congress?

The H-2B numerical limit set by Congress per fiscal year is 66,000. However, aliens who are eligible for H-2B status as "returning workers" do not count against the annual numerical cap. USCIS notes that the "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) have been extended until September 30, 2007, which marks the end of FY 2007. For FY 2007 all “returning workers,” means workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means that for a petition with a work start date after October 1, 2006 (FY 2007), the worker must have been previously approved for an H-2B work start date between October 1, 2003 and September 30, 2006. If a petition was approved only for “extension of stay” in H-2B status, or only for change or addition of employers or a change in the terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year.

Why does USCIS authorize more H-2B workers than the statutory limit?

Employers often decide after submitting an H-2B petition that the workers are no longer needed. In other instances, some aliens never appear at the consular post for their visa interview following petition approval. However, USCIS still processes these petitions (notification from employers that workers are no longer needed is rare) and sends the approved petitions to the Department of State (DOS) for consular processing. If the employers no longer request these workers, DOS will not issue visas for these workers. As a result, the number of potential H-2B workers authorized to work by USCIS will often exceed the actual number of visas issued based on petition approvals---the basis of the statutory limit. Another factor is that DOS denies some visa applications even though USCIS has approved petitions for these workers. Cap Beneficiaries Approved ---New Beneficiaries Pending---New Beneficiaries Target 1 Total Date of Last Count H-2B 1st Half 33,000 ------ ------ ------ Cap Reached 11/28/2006 H-2B 2nd Half 33,000 2 ------ ------ ------ Cap Reached 3/16/2007 H-2B Annual (FY 07 66,000 3 ------ ------ ------ ------ ------ What is the H-2B Labor Certification Process for Temporary Employment of Aliens in the U.S.?

PROGRAM DESCRIPTION:

This program allows employers wishing to employ foreign workers in temporary nonagricultural occupations for a period of less than one year to file a labor certification application directly with the relevant State Workforce Agency.

REGULATIONS: 20 CFR, Part 655, Subpart A

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.
The employer should provide documented proof: Payroll records and staffing levels of the designated occupation based on the labor market they serve.
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.
The employer should provide documented proof: Signed work contracts, letters form clients and invoices based on the labor market they serve.
Peakload 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 Application shall be valid for the period of employment indicated on the Form ETA 750 Part A; however, in no event shall the validity period exceed 364 days.

TEMPORARY PROCESS:

The employer files a labor certification application for temporary employment, including ETA Form 750 Part A and documentation to support the employer's temporary need, with the Alien Labor Certification Section of the State Workforce Agency. The form and documentation must be filed in duplicate with original signatures on each ETA 750 Part A. Temporary labor certification applications should be filed at least 60 days prior to the date of need; however, applications filed more than 120 days prior to the date of need will be returned to the employer. Alien Labor Certification staff issues a priority date and reviews the application. The employer will be notified of any additions or corrections that have to be made to the application. A job order will be placed by the State Workforce Agency for 10 days. Alien Labor Certification 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. During this period the employer is required to consider all qualified U.S. applicants and, if one is available, to hire that applicant. The employer can only reject applicants for lawful, job-related reasons. The employer must submit documentation of the recruitment results. When complete results are received, Alien Labor Certification staff will forward the application to the Regional Labor Office for processing.

REQUIRED WAGES:

The Immigration and Nationality Act (INA) requires that the wages paid to nonimmigrants 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 or the prevailing wage rate for the occupational classification in the area of employment. The amended INA does not preclude the employer from paying nonimmigrants more than the higher of the actual wage or the prevailing wage.