The H-2B Temporary Nonimmigrant Labor Certification permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent.
There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September).
The process for obtaining H-2B certification is similar to, but less extensive and time-consuming than permanent certification. H-2B cases should be filed at least 60 days, but not more than 120 days before the worker is needed, to allow time for processing delays and correction of application errors.
As of January 18, 2009, Transition filing & NEW regulation procedures are effective – H-2B Final Rule. Any questions should be directed to: H-2B.Regulation@dol.gov
The filing of H-2B cases will no longer be the responsibility of the Department of Labor (DOL)/State Workforce Agency (SWA) but of the Chicago National Processing Center. There is a New Form (Form 9142) to file a H-2B application. The ETA 750 form is no longer used. A completed Form ETA 9142 need be filed with the Chicago National Processing Center (CNPC). Employer may not file the ETA 9142 with the Chicago National Processing Center until all of the pre-filing activities steps have been met, except where a specific exemption applies.
There are four steps for pre-filing activities that should be completed to file an H-2B application.
Obtaining a Prevailing Wage Determination
- For the date of need prior to October 1, 2009 from the DE Department of Labor (DOL) /State Workforce Agency (SWA)
- H-2B Prevailing Wage
- Employer P/W request will be reviewed by the SWA and a deficiency/correction letter will be sent out if any corrections need to be made.
- For the date of need on or after October 1, 2009, from the Chicago National Processing Center (CNPC)
- Submit a job order to the DOL/ SWA – FLC Unit – Review Job order Page
- H-2B Job Order
- Employer Job Order request will be reviewed by the SWA and a deficiency/correction letter will be sent out if any corrections need to be made.
- Job Order period of not less than 10 days
- Applicants referred by the SWA will have been verified through the employment verification
- Run two (2 days) printed advertisements in area of intended employment
- Referrals should be directed to the employer
- Two methods of contact should be stated in ads
- Contact local union where the employer is a party to a collective bargaining agreements
- Attest on the ETA 9142 that it has complied with all necessary steps of the recruitment process
All advertising must contain terms/conditions of employment which are not less favorable than those that will be offered to the H-2B workers.
- Employer will prepare, sign, and date recruitment report (meet requirements – 20 CFR 655.15(j))
- Employer will then submit the ETA form 9142 and Recruitment Report to the Chicago National Processing Center (CNPC). A CNPC certifying officer will grant certification if he/she finds that qualified persons in the United States are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed.
- No fewer than 2 calendar days after the last date on which the job order was posted, and
- No fewer than 5 calendar days after the date on which the last newspaper advertisement appeared.
- Appendix B.1 must be attached to the ETA form 9142
- CNPC will review the submitted documentation and if need be the CNPC will issue a Request for Information (RFI) within 7 Calendar days
The approval certification or notice of denial is to be used by the employer to support its visa petition to be filed with the district director of the USCIS. The DOL decision is only an advisory to USCIS; there is no appeal process within the DOL for denial for H-2B applications. Such appeals must be filed with the USCIS.
For any additional information, please refer to the U.S. DOL Foreign Labor Certification Website for H-2B Certification for Temporary Nonagricultural Workers. (Has not been updated- 3/09)
Foreign Labor Certification Navigation
Related Topics: Employment & Training, Foreign Labor Certification (FLC), H-2B Program