Michael A. Pezzuto

Attorney at Law

 

(805) 604-9555

Business Visas
Text Box: If you are a U.S. Employer who needs to hire an alien worker to fill a job that is temporary or seasonal in nature but nonagricultural sponsoring the potential alien employee for an H-2B visa may solve your problem. What is the H-2B visa? The H-2B visa classification applies to aliens coming temporarily to the U.S. to perform nonagricultural work of a temporary or seasonal nature, if U.S. workers capable of performing such service or labor cannot be found in the United States What is the procedure for sponsoring an employee in the H-2B category? A. An H-2B temporary nonagricultural worker is an alien who is coming temporarily to the U.S. to perform temporary services or labor if qualified U.S. workers capable of performing such services or labor are not available, and whose employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. B. U.S. Citizenship and Immigration Services (USCIS) regulations at 8 CFR 214.2(h)(6) establish requirements for the H-2B visa classification. USCIS regulations require: (1) that the H-2B petitioner be a U.S. employer, or the authorized representative of a foreign employer having a location in the United States; and (2) that the employer apply for temporary labor certification with the Department of Labor (DOL) prior to filing a petition with USCIS to classify an alien as an H-2B worker in all areas of the United States, except the Territory of Guam. In Guam, an employer must apply to the Governor of Guam for an H-2B temporary labor certification. C. A temporary labor certification is advice from the Secretary of Labor to USCIS on whether or not U.S. workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed U.S. workers. The USCIS is not bound by DOL's certification or notice that certification cannot be made. D. DOL regulations at 20 CFR 655 Subpart A – Labor Certification process for Temporary Employment in Occupations Other Than Agriculture, logging, or Registered Nursing in the United States (H-2B Workers) govern the labor certification process for temporary employment in the U.S. under the H-2B visa classification. They require that DOL, through the appropriate Regional Administrator of the Employment and Training Administration, issue a temporary labor certification if it finds that qualified persons in the U.S. are not available and that the terms of employment will not adversely affect the wages and working conditions of similarly employed workers in the U.S. In making its findings, DOL considers such matters as the employer's attempts to recruit U.S. workers and the appropriateness of the wages and working conditions offered, and the policies for the U.S. Employment Service set forth at 20 CFR 652 and 20 CFR 655, subparts A, B and C. II. Standards for Determining the Temporary Nature of a Job Offer Under the H-2B Classification A. A job opportunity is temporary under the H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. As a general rule, the period of the employer's need must be 1 year or less, although there may be extraordinary circumstances where the need may be for longer 1 year. The labor certification application may be filed for up to, but not exceeding 12 months. If there are unforeseen circumstances where the employer's need exceeds 1 year, a new certification is required for each period beyond 1 year. Temporary employment should not be confused with part-time employment, which does not qualify for temporary (or permanent) labor certification. B. The employer's need for the services or labor shall be either: (1) a one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. 1. One-time Occurrence The employer must establish: (1) that it has not employed workers to perform the services or labor in the past; and (2) that it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. 2. Seasonal Need The employer must establish that the service or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The employer must specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is needed is unpredictable, subject to change, or considered a vacation period for the employer's permanent employees. 3. Peakload Need The employer must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand with temporary employees who will not become a part of the regular operation. 4. 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. If you need the services of a temporary worker please fill out the form by clicking here or call to set up a consultation 805-604-9555.