The H2B visa Process and Requirements:
1) The employee must 1st have a job offerfrom a US employer to perform a temporary job (H1 Base can help you). 2) The employee must meet the minimum qualifications for the job that the employer has offered. 3) The US employer files the H2B application with the US Immigration Bureau. 4) The employee must intend to return home when the job ends and visa expires.
Who Qualifies for an H2B visa The H2B visa is available to employers of foreign non-professionals Not working in the agricultural field. This visa is only available for work that is temporary in nature. For H2B purposes, that means:
- Recurring seasonal need;
- Intermittent need;
- Peak-load need; and
- One time occurrence.
H2B Visa duration: The duration of the H2B is limited to the employer's need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration up to three years in some situations.
If the prospective worker is
outside of the USA , they must then apply for a visa with the US consulate. - The H2B visa application includes:
- Job offer from a US employer
- DS-156, Application for Nonimmigrant Visa
- DS-157 if male between the ages of 16 and 45)
- The necessary filing fees
- Copy of Notice of Approval of H-2B Petition
- One passport-style photo
- Evidence of ties to the home country (family, property, current occupation, etc.) Like with any other nonimmigrant visa, the Consulate needs to see that each applicant has ties to the country so that he or she will return home after their work period ends.
If the prospective worker is
already in the USA and is changing from one nonimmigrant status to another, a visa is not required. However, if the worker leaves the US and wants to re-enter, they may need a visa.
Entry into the USA Applicants should be aware that a visa does not guarantee entry into the United States . The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States . At the port of entry, officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.
Bringing family members Spouses of H2B visa holder or an unmarried child under 21 years of age of H-2B visa holder are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2A visa holder. H-4 visa holders are not permitted to work in the USA .
Filing the I-129 Petition In order to be considered as a nonimmigrant under the above classifications, the prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the United States Bureau of Citizenship and Immigration Services (USCIS). Once approved, the employer is sent a notice of approval, Form I-797.
What You need to apply for a H2B Visa
It is possible, in some cases, for employers to file blanket petitions (that is, one petition for several individual employees).
FREQUENTLY ASKED QUESTIONS AND INFORMATION - FOR H2B EMPLOYERS / SPONSOR COMPANIES (courtesy of the US Immigration Bureau)
What is an H2B VISA certification? The H2B VISA labor certification program establishes a means for U.S. nonagricultural employers who anticipate a shortage of domestic workers, to bring temporary nonimmigrant foreign workers into the U.S. H2B VISA eligibility requires that the job and the U.S. employer's need for the foreign worker be of a temporary nature. 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.
How long is the H2B VISA labor certification valid? The H2B VISA labor certification application shall be valid for the period of employment indicated on the Form ETA 750; however, in no event shall the validity period 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. H2B VISA certification is not transferable from one employer to another. Certification is issued only or a specific job opportunity, for a specific number of workers, and for a specific employment period.
What constitutes a temporary need for H2B VISA temporary labor certification? The job must be temporary in nature and the need is for one year or less. The employer’s need cannot be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is either a one-time occurrence, seasonal, peak load or intermittent need.
What is the required time frame for filing an H2B VISA temporary labor certification application? Employers are advised to file requests for H2B VISA certifications no more than 120 days but at least 60 days before certification is needed. SWAs have been instructed to return H2B VISA certification applications filed more than 120 days before the worker is needed.
What if my application is denied, can I still file with USCIS? Yes. The DOL decision to grant or deny certification is only an advisory to USCIS.
What types of jobs / work can I do while on an H2B visa Various types of work and employment in the areas of: Hospitality, Hotels / Motels, Resorts, Ticket Sales, Cruise ships, Construction workers, Maintenance, Janitorial, Ski Resorts, Landscaping, Golf Courses, Water parks, Security, Ride Operators, Restaurants and bars, Warehouse, Retail Stores
What form do I use for "returning" H2B VISA workers? H2B VISA labor certification program requirements do not distinguish between returning foreign workers and first-time (i.e., new) foreign workers. For purposes of labor certification, an employer must prepare and submit to the Department of Labor Form ETA 750, Part A, and go through the same process for all H2B VISA workers. Employers whose certifications are approved by DOL identify returning workers when filing their non-immigrant worker petitions with the Department of Homeland Security, United Stated Citizenship and Immigration Services (USCIS), to exempt those workers from the H2B VISA annual numerical cap.
Who is authorized to make changes to the ETA Form 750, Part A? Employers, attorneys, and/or agents are authorized to make modifications to the ETA Form 750, Part A, as long as each modification is initialed and dated on the original form. If the employer is represented by an attorney, the attorney must file a Notice of Appearance (G-28) with the application package. If the employer's agent files, the "Authorization of Agent of Employer" portion of the ETA Form 750 must be signed. Having established such individual is the employer's authorized representative, an attorney or agent may make representations on the ETA Form 750, Part A, as long as the attorney or agent initials and dates each modification on the original form.
Is it permissible for an employer to file a single application that will cover all his temporary employees during the entire period of need where the work will be performed in disparate states, e.g., in California and Florida ? No. Training and Employment Guidance Letter (TEGL) 21-06, Section III, states that an employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 750, Part A, with the State Workforce Agency (SWA) serving the area of intended employment. Section VII further notes that a temporary labor certification is valid only for the number of aliens, the occupation, the area of intended employment, the specific occupation and duties, the period of time, and the employer specified on the Application for Alien Employment Certification, ETA Form 750. The area of intended employment means the area within normal commuting distance of the place of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA) (including a multi-state MSA, see below), then any place within the MSA is deemed to be within normal commuting distance. In the circumstance described above, the employer must file two (2) separate applications for temporary labor certification; one with the California SWA and one with the Florida SWA.
What defines a Metropolitan Statistical Area (MSA)? MSAs are geographic entities defined by the U.S. Office of Management and Budget for use by Federal statistical agencies in collecting, tabulating, and publishing Federal statistics. A metro area contains a core urban area of 50,000 or more population, and a micro area contains an urban core of at least 10,000 (but less than 50,000) population. Each metro or micro area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measures by commuting to work) with the urban core. For more information on MSAs, please visit the U.S. Census Bureau at http://www.foreignlaborcert.doleta.gov/redirect.cfm?link=www.census.gov/population/www/estimates/metroarea.html
Assuming we have more than one (1) work site location within an MSA and different prevailing wage rates exist, which rate do we write on the ETA Form 750, Part A, and use in subsequent advertising for recruiting U.S. workers? In this circumstance, the employer shall offer the highest prevailing wage across all the states and counties covered by the MSA on the ETA Form 750, Part A.
Assuming we have more than one (1) work site location within an MSA that cross SWA jurisdictions, where do we file the H2B VISA application? Although the foreign workers may be working in multiple states within the MSA, the employer should submit a single application to the SWA where the employment will begin. In those instances where the employment crosses NPC jurisdictions as well, the NPC that has jurisdiction over the SWA where the employment will begin shall process the application. In accordance with Section IV.C of TEGL 21-06, the SWA shall clear the job order for 10 calendar days with the appropriate state(s) where the work is to be performed and accept for referral to the employer qualified applicants from the state(s).
When completing the ETA 750 form(s), specifically item #7, how should we indicate the multiple locations within the MSA? To be consistent with the guidance provided in TEGL 21-06, the employer should do the following:
(1). Under Item #7, list the work site address where the employment will begin, since this should correspond to the SWA where the application is initially filed;
(2). Under Item #7, write the phrase "see addendum for additional worksites within MSA"; and
(3). Attach an addendum to the ETA Form 750, Part A, which includes a listing of all the worksite locations.
With regard to the required supporting documentation to support Item 18b, should this documentation be filed with the initial ETA 750, or is this information that is not needed and/or reviewed until the final determination. For example, is it sufficient to send all of the supporting documentation with the final application, which also will include advertising and recruitment efforts? In accordance with TEGL 21-06, Section III.D, every H2B VISA application must include supporting evidence and documentation that justifies the chosen standard of temporary need. The entry made by the employer on Item 18b is an integral part of justifying that the nature of the employer's need is temporary. Such supporting evidence and documentation must be submitted to the State Workforce Agency along with: (a) two (2) originals of the ETA Form 750, Part A, signed and dated by the employer; (b) documentation of any efforts to advertise and recruit U.S. workers prior to filing the application, which can be described in Item 21 of the ETA Form 750, Part A; and (c) a detailed temporary need statement. No variance to this application filing requirement will be granted.
Is it permissible for an employer to file a single application where multiple worksites are located within a Metropolitan Statistical Area (MSA) and the worksites do not cross SWA jurisdictions? Yes. Training and Employment Guidance Letter (TEGL) 21-06, Section III, states that an employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 750, Part A, with the State Workforce Agency (SWA) serving the area of intended employment. The "area of intended employment" means the area within normal commuting distance of the place of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA), then any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. In the circumstance describe above, the employer may file a single application that covers all of the worksite locations within a MSA within the jurisdiction of the same SWA.
Important Note: If the SWA determines that different prevailing wages exist for the occupation being requested for certification within the MSA, then the employer shall offer the highest prevailing wage across all the cities/counties covered by the MSA on the ETA Form 750, Part A.
Please clarify the difference between seasonal and peakload. We have a landscaping business, which requires more workers in the spring, summer, and fall. Are we seasonal or peak load ? Your need is peak load. If your business completely shuts down for the winter, your need for the services to be performed would be seasonal.
Are employers required to submit the summarized monthly payroll report to substantiate a seasonal or peak load need under the H2B VISA visa classification? No. As stated in Training and Employment Guidance Letter (TEGL) 21-06, each H2B VISA application must contain supporting evidence or documentation that justifies the chosen standard of temporary need. Employers may submit any combination of evidence or documentation, and examples of acceptable documentation for the most common standards of seasonal and peak load need include, but are not limited to, the following:
a. Signed work contracts, letters of intent from clients, and/or monthly invoices from previous calendar year(s) clearly showing work will be performed for each month during the requested period of need on the ETA Form 750, Part A, Item – 18b. This type of documentation will demonstrate the employer's need for the work to be performed is tied to a season(s) of the year and will recur next year on the same cycle;
b. Annualized and/or multi-year work contracts or work agreements supplemented with documentation specifying the actual dates when work will commence and end during each year of service and clearly showing work will be performed for each month during the requested period of need on the ETA Form 750, Part A, Item – 18b.; or
c. Summarized monthly payroll reports for a minimum of one previous calendar year that identifies, for each month and separately for full-time permanent and temporary employment in the requested occupation, the total number of workers or staff employed, total hours worked, and total earnings received. Such documentation must be signed by the employer attesting that the information being presented was compiled from the employer's actual accounting records or system. Employers should be prepared to provide the documents utilized to generate the summarized monthly payroll reports if requested by the NPC Certifying Officer.
The types of supporting evidence/documentation listed under Section III.D.4 of TEGL 21-06 is not exhaustive, but rather suggestive of the types of acceptable evidence/documentation the Department of Labor would recommend employers use in substantiating their temporary need. For example, if the employer chooses to substantiate his/her temporary seasonal or peakload need for foreign workers based solely upon letters of intent from clients, then the SWA should accept such evidence as the official documentation supporting the H2B VISA application.
Do we have to provide all the documents listed TEGL 21-06, e.g., contracts, letters of intent, invoices, and payroll reports? How many supporting documents are necessary in order to establish a need for foreign workers with respect to monthly invoices, contracts and letters of intent? The documents listed in TEGL 21-06 constitute examples of supportive evidence or documentation for the most common standards of seasonal and peak load need. These documents can best provide adequate documentation of a seasonal or peak load need because they are most likely to contain the information that demonstrates the need is temporary. The TEGL provides indications of what information must be in each document in order to provide the necessary proof. Most importantly, all of these documents need to have dates of service that correspond to the period of need stated on the ETA 750. Each case must be analyzed based on its own documentation, but every case will be reviewed to see if the documents supporting the statement of temporary need contain the basic indicators of a true temporary need. In many cases, employers can use a combination of the documents listed in the TEGL supplemented with any other documents that are appropriate for their industry, such as hotel occupancy and staffing reports, in order to draw a complete picture that will show seasonality or peak load need.
How many letters of intent, contracts, or monthly invoices do we send to prove our need? If we have 150 invoices, does DOL want them all?
The employer must submit documents that adequately demonstrate the temporary need. If that is accomplished with three invoices that show the nature of a seasonal need for the months required and for the number of employees requested, then the employer need only provide three. If, on the other hand, the need for the total number of months and employees requested can only be documented through 150 invoices, then the application should include all 150. In most cases, a sample set of work contracts or invoices can demonstrate the need for the requested months and employees.
What documents should a new company provide if they have no records for temporary need such as payroll records or invoices from the previous year?
The documentary list is not exhaustive and an employer is not required to provide every item on the list. An employer may submit any combination of documentation necessary, as long as the documents sufficiently show the temporary nature of the need. See TEGL 21-06, Part III (D)(4). A new business might not have employee records to provide from the previous year, but should have signed contracts or letters of intent from clients sufficiently detailed to clearly show that work will be performed for each month during the requested period of the need stated on the ETA Form 750. Ancillary documents such as newspaper articles, promotional materials, and official Visitor Bureau’s documents might be added to the documents to augment the showing of the temporary need in the case of new businesses. However, the documentation of the business’ own activities is essential to show the need for services of H2B VISA workers.
If we did not receive our approval this year until May, but needed the workers in March, and could not open until we received our workforce, how will we be able to prove our need next year for March?
The employer is encouraged to indicate that its previous year's workers arrived late due to NPC delays in processing cases on its temporary needs statement. The employer must also submit supporting documentation from previous years to prove its standard of need.
Are payroll reports required for all positions in the facility or company or just for the position for which H2B VISA workers are requested? The Department only requires payroll reports to demonstrate the temporary need for the specific job opportunity being requested on the ETA Form 750, Part A.
Should we include American workers, other foreign workers (non-H2B VISA) and H2B VISA workers in the temporary column of the payroll summary reports?
Yes, all temporary full-time workers, including U.S. temporary workers, non H2B VISA foreign workers, and H2B VISA workers should be included in the payroll summary reports under the temporary column.
Are employers required to submit a sample advertisement to the SWA for approval prior to publication in a newspaper of general circulation?
No. Pre-approval of the employer's job advertisements is an unnecessary step and causes excessive delays in SWA processing. Once the SWA is satisfied (i.e., following correction of all deficiencies) that the employer's job opportunity, as written on the ETA Form 750, Part A, is offering at least the prevailing wage, does not contain unduly restrictive job requirements or a combination of duties not normal to the occupation or terms and conditions that inhibit the effective recruitment and consideration of U.S. workers, the employer is then responsible for complying with the newspaper advertising and recruiting instructions issued by the SWA and the Department's policies and procedures set forth in TEGL 21-06, Section IV. If it is determined that the job opportunity contained requirements or conditions which preclude consideration of U.S. workers or which otherwise prevented their effective recruitment, the NPC Certifying Officer will deny the temporary labor certification. In making such a determination, the NPC Certifying Officer will consider all information disclosed on the ETA Form 750, Part A, the content of the employer's newspaper advertisements, and the disposition of all referrals of qualified U.S. workers on the recruitment report.
Are employers required to advertise on a Sunday in circumstances where the SWA has recommended a newspaper with a daily circulation?
No. TEGL 21-06, Section IV, contains no requirement that the employer advertise on a Sunday. The Department only requires the employer to advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers.
Is it necessary that a union be contacted in every instance when engaging in recruitment with the State Workforce Agency (SWA)? No, it is not necessary in every instance to contact a union to solicit potential U.S. workers for a job opportunity. Unions should be contacted only if they exist for the occupation being requested for temporary labor certification. TEGL 21-06, Section IV, states the employer shall document that union and other recruitment sources, appropriate for the occupation and customary to the industry, were contacted and either unable to refer qualified U.S. workers or non-responsive to the employer's request. If no union exists for the occupation, the employer should indicate this under Item 19 of the ETA Form 750, Part A, regardless of whether the employer was requested to contact a union by the SWA.
Many newspapers have gone to electronic tear-sheets. Are these acceptable?
Electronic tear-sheets provide too much potential for fraud. The employer must provide either the actual page from the newspaper, which shows the name of the newspaper, the ad, and the date it ran (a copy is acceptable as long as all three things can fit on one page without folding over any part of the newspaper) or an affidavit from the newspaper confirming the date the ad ran and the exact wording that appeared in the ad.
Is an employer required to engage in advertising and recruitment prior to submitting an H2B VISA application with the State Workforce Agency? No. As stated in Training and Employment Guidance Letter (TEGL) 21-06 under Section III, D.2, every H2B VISA application shall include "documentation of any efforts to advertise and recruit U.S. workers prior to filing the application with the SWA.” The employer can meet this application filing requirement by completing Item 21 of the ETA Form 750, Part A, and Application for Alien Employment Certification. If the employer has engaged in advertising and recruitment efforts prior to submitting the ETA Form 750, then Item 21 should clearly describe those efforts (e.g., dates and length of advertising, referrals received) by recruitment source. If additional space is needed, the employer may attach a separate document with the application.
In circumstances where the employer has not made any efforts to advertise and recruit prior to submitting the H2B VISA application, the employer should provide such notification in Item 21 and indicate that the employer is waiting for and will comply with supervised recruitment instructions from the SWA. Therefore, although the employer is not required to engage in advertising and recruitment prior to submitting the H2B VISA application, the employer must complete Item 21 of the ETA Form 750, Part A, as instructed above, in order to fulfill the application filing requirement under Section III, D.2.
Regarding advertising efforts, would we need to advertise in each specific county/state within the MSA, or is it sufficient to advertise with ONE NEWSPAPER that covers all States within the MSA where the employees will be employed during the peak season? In accordance with Section IV.D of TEGL 21-06, during 10-day posting of the job order, the employer shall advertise the job opportunity in a newspaper of general circulation for 3 consecutive calendar days or in a readily available professional, trade or ethnic publication, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers. The phrase "a newspaper" explicitly refers to a single newspaper of general circulation. In the circumstance described above, the SWA should recommend a newspaper with the widest circulation that covers the MSA.
Is it permissible for multiple employers to recruit for U.S. workers using a single newspaper advertisement?
Training and Employment Guidance Letter (TEGL) 21-06, Section III, states that an employer desiring to use foreign workers for temporary non-agricultural employment must file a complete ETA Form 750, Part A, with the State Workforce Agency (SWA) serving the area of intended employment. An association or other organization of employers is not permitted to file master applications on behalf of its membership under the H2B VISA program. Section VII further notes that a temporary labor certification is valid only for the number of aliens, the occupation, the area of intended employment, the specific occupation and duties, the period of time, and the employer specified on the Application for Alien Employment Certification, ETA Form 750. In the vast majority of cases, it is not permissible for multiple employers to use a single newspaper advertisement to recruit for U.S. workers, since the locations, wages, job duties and requirements, and/or periods of employment differ among employers. Such a situation is inconsistent with the Department's policies preventing, a bona fide test of the labor market and the effective recruitment of U.S. workers.
However, in circumstances where multiple employers are each filing separate H2B VISA applications and the occupation, duties to be performed, location(s) of work, job requirements, rate of pay, duration of employment, work hours and days, and State Workforce Agency (SWA) to which U.S. workers will be referred are all identical, it is permissible for multiple employers to use a single newspaper advertisement, as long as the information contained in the advertisement meets all the requirements for advertising contained in TEGL 21-06, Section IV.E. In this limited circumstance, the SWA must post a job order to advertise the job opportunity for each employer, and the single newspaper advertisement must clearly show the name of each employer, the total number of job openings to be filled, and the SWA job order number for each employer (see example below). Please note that each employer's individual ETA Form 750 A must comport and be consistent with the information provided in the employer's advertisement. Advertisements that do not clearly show these items will be rejected and the cases will be denied.
USCIS approves a work permit for the employee in accordance with the Department of Labor's certification. If employers must file a separate ETA 750 for each STATE where the H2B VISA worker is working, is the employee required to carry multiple work permits with him for the State that he is working in at that time?
This question should be addressed to USCIS.
How should an employer advertise if the area of intended employment does not have a newspaper that runs 7 days a week?
Department of Labor guidance states that an employer must advertise the job opportunity in a newspaper of general circulation or in a readily available professional, trade or ethnic publication, whichever the State Workforce Agency (SWA) determines is the most appropriate for the occupation and most likely to bring responses from U.S. workers. If the job opportunity is located in a rural area that does not have a newspaper with a daily edition that runs 7 days a week, the employer will be instructed to use a daily edition with the widest circulation in the nearest urban area or such other publication, as the SWA may direct. (Training and Employment Guidance Letter (TEGL) No. 21-06, Change 1, Section IV.D.)
Can the DOL develop a process to accelerate the labor certification process for occupations where there is currently a labor shortage?
In essence, there is a labor shortage for every position included on a labor certification application. To ensure fairness to each employer that applies for temporary labor certification under the H2B VISA program, all applications are processed on a first in, first out basis, with no exceptions. Employers are encouraged to ensure that they have submitted a complete application to the SWAs and all the necessary supporting documentation to avoid any unnecessary delay.
Once the visa cap for the first half of a fiscal year has been reached, assuming the visas continue to be granted on this basis, can the DOL amend previously certified labor applications so that the date of need can start in the second half of the fiscal year?
No. A temporary labor certification is valid only for the number of foreign workers, the area of intended employment, the specific occupation and duties, the period of time, and the employer specified in the Application for Alien Employment Certification, ETA Form 750. Employers must file a new application with a valid test of the labor market and include all supporting documentation to support a new date of need.
What are the typical forms of supporting documentation to justify a temporary need for horse groomers?
To substantiate their temporary need, horse show employers generally provide a copy of their show schedule(s), if applicable, and a summarized monthly payroll report for a minimum of one previous calendar year showing the permanent and temporary groom-related positions. Department of Labor regulations require that a payroll report identify, for each month and separately for full-time permanent and temporary employment in the requested occupation, the total number of workers or staff employed, total hours worked, and total earning received. Such documentation must be signed by the employer attesting that the information being presented was compiled from the employer’s actual accounting records or system. Employers should also be prepared to provide the documents utilized to generate the summarized monthly payroll reports if requested by the NPC Certifying Officer. (Training and Employment Guidance Letter (TEGL) 21-06 Change 1, Section III.D.4.c.)
Is a seasonal or peak load need established if the employer's customers, because of budget constraints or a holiday season, do not request the labor/services during one certain period of the year?
In order to establish a seasonal need, the employer must establish that its services or labor is traditionally tied to a season of the year by an event or pattern, and is of a recurring nature. The employer can establish a seasonal need for temporary foreign workers if it can establish a clear pattern of when temporary foreign workers are needed regardless of the reasoning behind the need. The employer must specify the period(s) of time during each year in which it does not need the services or labor. An employer providing services whose clients no longer require those services because of a predictable cyclical budget constraint or a holiday season, and can demonstrate that its own need for workers during those weeks or months is then eliminated, demonstrates a temporary need. (Training and Employment Guidance Letter (TEGL) 21-06, Change 1, Section II.D.2.)
What is the process if an employer needs to extend its period of need for H2B VISA workers? 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 peakload need of longer than 10 months, which is of a recurring nature, will not be accepted. Training and Employment Guidance Letter (TEGL) No. 21-06, Change 1; DHS regulations at 8 CFR 214.2(h)(6)(ii),)
How should an employer request a copy of its final determination letter indicating that its application has been denied?
An employer whose application has been denied will receive a final determination letter by mail. The employer may request a duplicate of the denial letter by fax, email or mail from the appropriate National Processing Center that processed the application. The contact information for the National Processing Centers is as follows:
U.S. Department of Labor
Employment and Training Administration
233 Peachtree Street, Suite 410
Atlanta, GA 30303
Fax: (404) 893-4643
U.S. Department of Labor
Employment and Training Administration
844 N. Rush Street
Chicago, IL 60611
Fax: (312) 353-3352
The DOL will send a copy of the final determination letter to the employer with a stamp indicating that the denial letter is a copy.
If a foreign worker would like to work for a new employer (in a different state, but similar position), must the new employer file a new ETA Form 750 and begin the H2B VISA process as though it were for a new employee? Yes. All employers must have a valid labor certification to support any H2B VISA worker.
What type of supporting documentation should be submitted by an employer seeking temporary labor certification based on a one-time need?
An employer seeking to justify a one-time need must establish that (1) it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or (2) it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. Evidence that has been used in cases of one-time need includes contracts showing the need for the one-time services, letters of intent from clients, news reports, event announcements, and similar documentation. (Training and Employment Guidance Letter (TEGL) 21-06, Change 1, Section II.D.1)
Is it permissible for a recruiting agency to pass the employer's legal and administrative costs of applying for H2B VISA visa certification onto the H2B VISA workers? There are currently no ETA regulations that expressly prohibit passing the legal and administrative costs of applying for H2B VISA visa certification onto the H2B VISA workers.
According to TEGL 21-06, Change 1, Section IV.F, an employer shall document that union and other recruitment sources appropriate for the occupation and customary in the industry, were contacted and either were unable to refer qualified U.S. workers or were non-responsive to the employer’s request. When an employer is instructed by the SWA to contact a union, who determines what is appropriate for the occupation and customary in the industry?
Item 19 of the ETA Form 750, Part A require the employer to indicate whether the temporary position is unionized. The State Workforce Agency serving the area of intended employment may also determine whether unions that are appropriate for the occupation and customary in the industry exist and may, instruct the employer to contact a specific union to determine if qualified U.S. workers are available for the position. Once the application is forwarded from the SWA to the NPC, the NPC Certifying Officer may determine whether there are other appropriate sources of workers from which the employer should have recruited in order to obtain qualified U.S. workers. If the NPC Certifying Officer determines that an appropriate union was not contacted, the NPC Certifying Officer may remand the case to the SWA with specific instructions on contacting the union.
Is it permissible for the State Workforce Agency to refer U.S. candidates who applied for the position after the conclusion of the 10-day job order? And should SWAs be required to issue an end of recruitment report? ETA has encouraged SWA staff to provide employers with a definitive "cut-off" time for the recruitment period to ensure timely processing and ample time for applicants to respond to the contact. The SWA should notify the employer no later than 10 days after the end of the recruitment period, as to each applicant referred (i.e., names and contact information) or the SWA must issue a statement indicating that no applicants were referred for hiring consideration. (Training and Employment Guidance Letter 21-06, Change 1)
When a SWA is referring a candidate to the employer, what can be done to establish consistency for the SWA's method of communicating to employers? If employers include prepaid FedEx envelopes for SWAs to forward the case to USDOL, will SWAs be required to use the prepaid FedEx? The communication methodology utilized by SWAs remains a state decision.
Is there a required time period in which DOL must process cases?
The INA and regulations do not set time limits for DOL's processing of H2B VISA applications. However, it is DOL's practice, consistent with available program resources, to process cases within 60 days.
What are the remedies available to an employer if the SWA did not forward an employer's necessary supporting documentation to the National Processing Center ?
In such an instance, the employer should contact the appropriate ETA National Processing Center for assistance using the e-mail box noted earlier.
How can an employer obtain a duplicate certified ETA Form 750? Only the U.S. Citizenship and Immigration Services (USCIS) may request a duplicate certified ETA Form 750. USCIS may do so through a written request to DOL in connection with a petition to employ the H2B VISA worker(s).
Employers requesting USCIS to obtain a duplicate certified ETA Form 750, should include on the top of the I-129, Petition for Nonimmigrant Worker -- a cover sheet (preferably highlighted with colored paper) stating the following:
LOST OR MISPLACED LABOR CERTIFICATION, REQUEST FOR DUPLICATE, DO NOT REJECT
On the same sheet, the following information should also be included:
0. Attorney or agent name, if applicable;
1. Employer's name;
2. ETA case number;
3. Specify that you want USCIS to initiate the request for a duplicate certified ETA Form 750;
4. Proper fee, signature and all required supporting documents;
5. Provide the reason(s) for requesting that the Service Center secure a duplicate, approved labor certification from DOL, e.g., "Case was certified, original approved labor certification was never received in the mail."
Once the USCIS receives the duplicate certified ETA Form 750, the USCIS will contact the employer and/or his representative via a Request for Evidence (RFE) in order to secure the employer's signature on the duplicate certification.
REMEMBER THAT DOL WILL NOT SEND THE DUPLICATE CERTIFICATION TO THE EMPLOYER. DOL WILL SEND IT ONLY TO USCIS.
Will an employer's case be delayed if the employer requests assistance from a Member of Congress? During an inquiry from the employer's Member of Congress, will the DOL continue to communicate with the employer's agent/attorney? An employer's case will not be delayed if the employer requests assistance from a Member of Congress. To ensure fairness to all H2B VISA applicants, the DOL will continue to process all applications on a first in, first out basis, regardless of whether the employer has requested assistance from a Member of Congress. Therefore, the employer's application will neither be delayed nor expedited due to a Congressional inquiry.
If the employer clearly identifies and describes a temporary need in its needs statement, is it necessary to specify whether that temporary need is peak load or seasonal?
Yes. Every H2B VISA application must include a detailed statement explaining (a) why the job opportunity and number of workers being requested reflect a temporary need, and (b) how the employer’s request for the services or labor meets one of the standards of a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. This statement of temporary need must be submitted separately on the employer's letterhead and with the employer's signature. An employer should specify how it meets one of the standards, and identify which standard. (Training and Employment Guidance Letter (TEGL) 21-06, Change 1, Section III.D.3)
If a criminal background check is required for domestic workers and is company policy, can this be listed as a requirement on the ETA Form?
Yes. As with all such requirements, if a background check is warranted for the job opportunity and required for U.S. workers in such job opportunities, it must also be required for foreign workers.
When the application clearly establishes representation by an agent or an attorney, is it appropriate for the SWAs to discourage an employer from utilizing their services?
Neither DOL nor the SWAs advise employers on the best procedures for submitting an H2B VISA labor certification application.
Does the DOL recognize any distinctions between job and labor contractors? No. The Department considers labor contractors to be the same as job contractors; job and labor contractors undertake the same activities with respect to their employment of workers for hire by other entities and are, therefore, under the same policies and procedures. (Training and Employment Guidance Letter (TEGL) 21-06, Change 1, Section III.C.)
What steps should a farm labor contractor applying for temporary workers in tree planting and related reforestation occupations take if its Certificate of Registration will expire before its listed period of need in its ETA Form 750, but has not expired when it submitted the application to the DOL?
The Farm Labor Contractor should submit a copy of its existing Certificate of Registration with the application for alien labor certification, as well as a signed, written assurance that all registrations will be valid during the entire period of use.
I have a need for a worker to perform similar combined duties. May I advertise and seek to employ an H2B VISA worker to perform a combination of duties?
Yes. An employer may require that an H2B VISA worker perform a combination of duties as long as the employer can prove that: (1) the employer has normally employed workers with these combination of duties in the occupation; (2) workers customarily perform these combination of duties in the area of intended employment; or (3) requiring the combination of duties is a business necessity. In any event, the employer will be required to pay the salary that is the higher of the salaries of the two positions that are combined, based on the combination of the skill sets, regardless of the amount of time the worker will spend performing each respective duty.
Are landscape workers permitted to perform activities that involve construction of pathways and patios? The current Occupational Information Network (O*NET) description states that landscape workers may perform installation of mortar-less segmental concrete masonry wall units. Therefore, landscape laborers may construct pathways and patios that do not involve the laying of the masonry with mortar. If the employer wishes to employ landscape workers to construct pathways and patios involving mortar, the employer is essentially searching for an H2B VISA worker to perform a combination of duties. In this instance, the employer may employ an H2B VISA worker to perform a combination of job duties as long as the employer can prove that: (1) the employer has normally employed workers with these combination of duties in the occupation; (2) workers customarily perform these combination of duties in the area of intended employment; or (3) requiring the combination of duties is a business necessity. Additionally, the employer will be required to pay the salary that is the higher of the salaries of the two positions that are combined (e.g., landscape worker and mason or bricklayer), based on the combination of the skill sets, regardless of the amount of time spent performing each respective duty.
In circumstances where the employer is requesting certification for a job opportunity (e.g., landscaping, construction) containing multiple worksite locations within the area of intended employment, how should the employer complete the ETA Form 750, Part A, specifically item #7, and conduct the required advertisement to recruit U.S. workers?
To be consistent with the guidance provided in TEGL 21-06, Change 1, the employer should do the following:
ETA Form 750, Part A
Under Item #7, the employer should complete the application as follows: (1). Write the phrase "Multiple worksites within MSA" or "Multiple Worksites within area of intended employment";
(2). Providing as much geographic detail as possible, write the work site address where the employment is expected to begin in Item #7, since this should correspond to the SWA where the application was initially filed; and
(3). Submit an addendum to the ETA Form 750, Part A, which includes a listing of all the worksite locations where the work will be performed during the period of employment indicated on the form. Employers are not required to provide a comprehensive listing of all worksites at the street address level, but must provide enough geographic detail (e.g., county/state, township/state, or city/state) to cover all of the worksite locations so that the SWA staff understands where the work will be performed within the area of intended employment.
Content for Newspaper Advertisements
TEGL 21-06, Change 1, Section IV.E, specifies the employer's advertisement must "identify the employer's name, location(s) of work, and direct applicants to report or send resumes to the SWA for referral to the employer by disclosing the SWA contact information and job order number." In order to meet the content requirements for newspaper advertisements and apprise US workers of where work will be performed, employers must provide enough geographic detail (e.g., county/state, township/state, or city/state) to cover all of the worksite locations where the work will be performed in the area of intended employment. For instance, the employer can disclose a listing of all the counties where work will be performed within the area of intended employment in order to meet the advertising requirements and apprise U.S. workers of the potential travel requirements for the job opportunity. This level of geographic detail is typically provided in advertisements for job opportunities under the H2B VISA program where the work will be performed in multiple worksite locations (i.e., covering multiple counties) within the area of intended employment. Employers are not required to disclose a listing of all worksite locations at the street address level in the newspaper advertisements.
Important Note: A common practice of landscaping and construction companies is to provide transportation to the worksite by picking up workers at a centralized location. Only listing the geographic location of the centralized "pick up" location in the advertisement is not appropriate and does not apprise US workers of where the actual work will be performed. The advertisement must identify the geographic location of the worksite, as well as the geographic location of the pick-up site, and disclose that the employer will provide transportation to the worksites through that centralized pick up location. Applications and/or newspaper advertisements where the employer discloses or otherwise apprises U.S. workers to provide their own transportation to the worksites will be considered by the NPC Certifying Officer to be an unduly restrictive job requirement that is not normal to the occupation.