It is common for an employer to seek entry for a number of skilled or unskilled temporary workers at the same time. As long as the workers will all fill the same position and work in the same location, many of the preliminary steps to obtain H-2B approval can be done at one time for all of the workers. Under a rule finalized in December of 1995, multiple H-2B beneficiaries may be included in the same petition, even when the alien workers will not receive their visas at the same consulate or enter through the same port of entry.
1. Unnamed Beneficiaries
Under current rules, the employer need not have chosen specific employees when applying for temporary labor certification from the Department of Labor. Usually, however, the employer must designate named aliens by the time that it files its H-2B petition with the USCIS after obtaining temporary labor certification. USCIS officers may rely totally on the assertions of the petitioner in determining whether the petitioner has a valid business reason for not providing named beneficiaries. If the employer has not identified all of the alien workers at the time that an H-2B petition is filed, and the USCIS has not granted an exception to its usual rule, a petition can be filed for the known alien workers, and when the other workers are identified subsequent petitions can be filed with copies of the original labor certification filed with the first petition.
2. Substitution of Workers
The employer can substitute alien workers for the named workers after approval of the USCIS petition if the petition was approved for a group, e.g., a musical combo, if it was approved by the USCIS under its exception permitting unnamed aliens to be included, or if the job being offered has no requirements for education, training, or experience. In these cases, the employer must notify the consulate where the visa will be sought or the port of entry where admission will be sought (in the case of visa-exempt aliens) of the identities of the substitute workers. When the substitution occurs in one of the first two cases and the credentials of the worker are important to his or her qualification, evidence of the worker’s credentials must also be submitted.
3. Certification must he sought from DOL
- A U.S. employer is required to file a labor certification request with DOL as the first step in employing aliens under the H-2B visa category. DOL must make a determination.
- Unemployed, qualified U.S. workers are not available for this position in the region of the alien’s proposed employment.
- The employment of the alien will not adversely affect the wages or working conditions of U.S. workers similarly employed.
DOL has issued separate guidelines for the certification of workers in certain industries (e.g., entertainment, construction personnel, foreign language instructors, aerospace engineers), and these guidelines must be consulted by the employer. In addition, agricultural workers are included in a separate nonimmigrant category, the H-2A category, for which the DOL has issued special regulations that must also be consulted. Contact the local DOL office’s alien employment certification unit for the separate guidelines if one of the occupational groups listed in this paragraph is the subject of your temporary need.
4. The employer’s need for the H-2B worker must he temporary
The employer must demonstrate that the position is one requiring skills or services for which it has a temporary need, and is not a position that needs to be filled by the employer on an ongoing or permanent basis.
In determining whether an employer has demonstrated temporary need for an H-2B worker, the DOL will consider:
Whether the job duties which are the subject of the temporary application are permanent or temporary in nature.
If the duties are temporary in nature the employer’s need is also temporary and further analysis is not necessary. If the duties are permanent in nature, the DOL will consider the other factor noted below.
Whether the employer has clearly shown that the need for the H-2B worker’s services or labor is of a short, identified length, limited by an identified event located in time.
Note that job opportunities of 12 months or more are presumed to be permanent in nature. Under extraordinary circumstances, however, a certified job opportunity could he filled by an H-2B worker for a cumulative period of 12 months or more. Such applications will be forwarded to the DOL regional office for adjudication. In addition, a period of more than 10 months is viewed with suspicion and will also lead to greater scrutiny.
In summary, the following situations can support an H-2B petition based on the employer’s temporary needs:
- Training of U.S. employees, when the training program is in place, U.S. workers have already been hired, and the trainer will not engage in actual productive employment.
- Temporary unavailability or absence of a regular employee, e.g., through leave of absence, illness, temporary out-of-office assignment, etc.
- Peak-load situations that is nonrecurring.
- Seasonal employment for carefully defined (not overly broad) seasons.
- Child care limited to early childhood supervision that will end in three years or less, as documented by alternative arrangements for the child at that time, e.g., nursery school, parent will stop working and undertake care, etc.
The “temporary need” requirement poses a significant hurdle for employment agencies and job contractors seeking to use the H-2B category. The Service has taken the position that job contractors or employment agencies cannot file H-2B petitions because such entities have a permanent need for their employees, despite the fact that an individual assignment for an employee may be temporary.
5. The employer must intend to employ the alien temporarily.
The employer must demonstrate that the alien’s term of employment will be temporary. Specifically, the employer must establish that it has not required the skills in question in the recent past, nor will it need those skills in the near future, and that there is a specific time period within which the temporary assignment will be completed, as evidenced by contracts or a description of circumstances that will bring the assignment to a close.
6. The alien can he skilled or unskilled
- Although the alien may be either skilled or unskilled, he or she must possess the requisite training, education, or skills for the position in question.
- The alien’s qualifications are established by submission of suitable documentation to the USCIS-degrees, school transcripts, and affidavits of experience. Note that documentation must be in the appropriate form-legible photocopies, unless original documents are requested by the USCIS, and translated, with a certification by the translator as to accuracy, if the original documents are in a foreign language.
- The alien must intend to remain in the U.S. temporarily and must maintain a foreign residence.
The alien’s intent to remain temporarily in the U.S. is judged independently from the employer’s intention to employ the alien temporarily. In this connection, the alien must maintain a residence abroad, that is, an actual home. Failure to specify a foreign address to which the alien worker will return upon completion of the U.S. assignment is likely to lead to denial of an H-2B visa at a U.S. consulate.
7. An admission slot within the annual cap must be available
The 1990 Act imposed an annual numerical limit on new H-2B admissions, effective with the fiscal year which began on October 1, 1991. That limit-66,000 annual admissions-is computed by the USCIS by assigning a number to each new H-2B petition filed with the Service during the fiscal year (petition extensions will not be counted against the annual limit). If the annual limit is reached, the USCIS will not continue to accept petitions and maintain a waiting list. Petitions will be returned to the employer, who will be told that the limit has been reached and that the petition can be refilled once the next fiscal year begins on the following October Ist.
The USCIS counts against the cap only those petitions regarded as new H-2B employment. Exempt from the H-2B cap are the following types of cases:
- Petitions for extensions of H-2B stay.
- Applications for extension of H-2B petition.
- Petitions reflecting changes in the terms of H-2B employment.
- Petitions reflecting changes or additions of H-2B employers. In addition, spouses and children of H-2B workers, classified in the H-4 category, are not counted against the numerical limit.
If you have any questions, our office in Wani & Associates will be happy to help you explain the H-2B Visa Status program requirements. Please feel free to Contact Now: 1-866-755-9264 .For more detailed information then come our website: http://www.wanilaw.com/