|- Employment Law Guide A Companion to the FirstStep Employment Law Advisor|
Work Authorization for Non-U.S. Citizens: Temporary Nonagricultural Workers (H-2B Visas)
Updated: September 2009
Sections 101(a)(15)(H)(ii)(b) and 214(c)(1),(c)(14), and (g)(1) and (g)(9) of the Immigration and Nationality Act of 1952, (INA)(http://www.uscis.gov/portal/site/uscis/menuitem.f6da51a2342135be7e9d7a10e0dc91a0/?vgnextoid=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&vgnextchannel=fa7e539dc4bed010VgnVCM1000000ecd190aRCRD&CH=act), as amended and 20 CFR Part 655 Subpart A(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title20/20cfr655_main_02.tpl) and 8 CFR Part 214.2(h)(6)
Who is Covered
The U.S. Citizenship and Immigration Service (USCIS) delegated its authority for determining the availability of U.S. workers and whether hiring temporary nonagricultural foreign workers will have an adverse affect on U.S. workers’ wages and working conditions to the Office of Foreign Labor Certification (OFLC) of the Employment and Training Administration (ETA). These regulations apply to employers who wish to import temporary nonagricultural workers to work in temporary jobs in the United States. The Immigration and Nationality Act (INA) requires the Department of Homeland Security (DHS) to consult with the Department of Labor before determining whether any worker can be admitted. The INA also provides that the number of aliens during any fiscal year who can be issued visas or provided nonimmigrant status cannot exceed 66,000.
USCIS regulations require that employers who file H-2B petitions with USCIS (except for temporary employment on Guam) must include a certification from the Department of Labor stating that qualified workers are not available in the U.S. and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers.
To obtain certification, employers must file applications for certification of temporary nonagricultural jobs on ETA Form 9142(http://www.foreignlaborcert.doleta.gov/pdf/OMBETAForm9142.pdf) with the Chicago National Processing Center(http://www.foreignlaborcert.doleta.gov/contacts.cfm) (NPC). To receive a timely determination, the employer should apply at least 60 but no more than 120 days before the workers are needed.
The employment for which certification is requested must, absent unusual or a one-time occurrence, be for less than 10 months. The need for the service or labor can be a one-time occurrence, seasonal need, peak load need, or intermittent need. Other detailed information may also be found on the H-2B Certification for Temporary Nonagricultural Work(http://www.foreignlaborcert.doleta.gov/h-2b.cfm) page of the Employment and Training Administration’s Web site(http://www.doleta.gov/).
Employers who have a date of need prior to October 1, 2009 must follow the transition procedures as specified in 8 CFR 655.5(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=8c4a615421a6c7e7dc7c126c2e24965c&rgn=div8&view=text&node=20:22.214.171.124.126.96.36.199&idno=20). For those employers who have a date of need on or after October 1, 2009 the regulations at 8 CFR 655 Subpart A apply(http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div6&view=text&node=20:188.8.131.52.34.1&idno=20). These regulations state that employers must conduct pre-filing recruitment. However, in order to do so, the employer must first obtain a prevailing wage by filing ETA Form 9141(http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9141.pdf) with the NPC. Pre-filing recruitment includes submitting a job order to the State Workforce Agency (SWA) serving the area of intended employment; publishing two print advertisements, one of which must be on a Sunday; and contacting the local union as a recruitment source if the employer is a party to a collective bargaining agreement in the occupation in which H-2B workers are sought. The job order must be posted at the SWA for no less than 10 days. Applicants must be considered for no fewer than two calendar days after the last date on which the job order was posted and no fewer than five calendar days after the last newspaper advertisement appeared.
The employer will prepare a recruitment report summarizing the results of the effort. The employer must sign the report and include the following information:
The Department of Labor’s Wage and Hour Division is responsible for enforcement of this program.
If the Department of Labor denies certification, the employer may appeal to the Board of Alien Labor Certification Appeals.
The employer seeking to employ H-2B workers must attest that the workers will be paid at least the prevailing wage for the occupation in the area of intended employment. In addition, worker-protection provisions that apply to U.S. workers (e.g., the Fair Labor Standards Act) cover nonimmigrant H-2B workers. Workers may file complaints under these general worker protection laws with a local Wage and Hour Division office(http://www.dol.gov/whd/america2.htm).
If the employer terminates the H-2B worker’s employment prior to the end of the contract period, the employer is liable for the H-2B worker’s return transportation.
Recordkeeping, Reporting, Notices and Posters
Notices and Posters
There are no notice or poster requirements.
The employer must retain, for a period of three years, the recruitment report, resumes (if any) of H-2B workers and evidence of contact with each U.S. worker who applied or was referred.
Labor Certification Application Process. Every H-2B application must include the following documentation:
The employer is obligated to report, to both OFLC and DHS, the early termination of an H-2B worker or that worker’s abscondment, or abandonment prior to the end date of the contract period. The report must be made within two days of termination or discovery of the abandonment or abscondment.
The Save Our Small and Seasonal Businesses Act of 2005 (Act) authorized the Department of Homeland Security (DHS), effective October 1, 2005, to impose administrative remedies (including civil monetary penalties in an amount not to exceed $10,000 per violation) as it or its designee determines to be appropriate if an employer is found to have committed a substantial failure to meet any of the conditions of the petition or a willful misrepresentation of a material fact in such petition. DHS delegated its authority to impose sanctions to the Secretary of Labor. The Act also authorizes DHS to deny petitions filed with respect to these employers for a period of one to five years. The Secretary of Labor may bar employers (and their successors in interest), attorneys, or agents from filing petitions for a period of no more than three years.
Relation to State, Local, and Other Federal Laws
Various federal, state, and local labor standards, such as the Fair Labor Standards Act, will apply to foreign workers employed in the U.S.
Compliance Assistance Available
Employers may obtain information on how to apply for a temporary nonagricultural labor certification, including application forms and directives that contain prescribed procedural requirements, from the national office of the Office of Foreign Labor Certification(http://www.foreignlaborcert.doleta.gov/).
The Department of Labor provides employers, workers, and others with clear and easy-to-access information and assistance on how to comply with the Immigration and Nationality Act. Additional compliance assistance including explanatory brochures, fact sheets, and regulatory and interpretive materials is available on the Compliance Assistance “By Law”(http://www.dol.gov/compliance/laws/comp-ina.htm) Web page.
Employment and Training Administration,
Office of Foreign Labor