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Guest Workers and H-2B Temporary Workers

Guest Workers

While there has been a great deal of talk in the media, politics and the workforce about the need for immigration reform and the need for a Guest Worker Program, to date all Congressional attempts to agree on and pass legislation has failed. Please check this page often as  will report on any movement in this area.

In the meantime, temporary skilled and unskilled workers enter the U.S. in H-2B Status.

H-2B Temporary Workers

The H-2B Category is set aside for skilled or unskilled non-agricultural workers who will enter the U.S. to work on a temporary basis for positions in which qualified U.S. workers are unavailable. The process to obtain H-2B status generally includes:

1. Temporary Labor Certification
      The prospective US employer must first apply to the Department of Labor for certification that:

      1. Qualified US workers are not available for the position offered in the region of the proposed employment.
      2. Employment of the foreign national workers will not adversely affect the wages or working conditions of US workers similarly employed.
      3. The Employer’s need for the workers is a temporary (one time, seasonal, or intermittent need).

With regard to item A, after filing an Application for Labor Certification with the State Employment Security Agency (“SESA”), the employer will be directed to undertake recruitment for the position offered. Recruitment will generally include the following:

      • Advertisement in a newspaper of general circulation for 3 consecutive days,
      • Contact and recruitment through relevant labor unions;
      • Job order with the state employment service agency;
      • Any other recruitment as directed by the SESA (for example, an internal company posting)

The employer must contact and interview qualified applicants to determine their interest in the position offered. The employer must file a final recruitment report, documenting the recruitment process and results with the SESA.

With regard to item B, the issue revolves around whether the prevailing wage for the position offered is being offered to the foreign national employees. If the SESA has an issue with the offered wage, it will notify the employer of the same before recruitment begins.

It is of note that the Labor Certification can be filed for multiple unnamed workers. The Labor Certification cannot be filed more than 120 days before the workers are needed and it is suggested that it should be filed at least 60 days before the workers are needed. It is filed in the state with jurisdiction over the work location. If more than one work location will be used, the itinerary must be listed and filing should occur at the state with the first assignment. Once the SESA has received the recruitment report and reviews the same, the SESA forwards the file to the regional office of the Department of Labor (DOL). The DOL will either certify or deny the Labor Certification.

2. USCIS Application
      Following the return of the Labor Certification from the DOL, the employer files a petition with the USCIS for the H-2B Application. If the position has minimum education and/or experience requirements (as defined in the Labor Certification), the workers will need to be identified in the USCIS petition and documentation, showing that each worker holds the minimum requirements for the position, must be submitted with the USCIS petition. If there are no minimum requirements for the position, then the USCIS petition can be filed for multiple unnamed workers. The petition must establish:

      1. The factors that make the employer’s need for the employee’s skills temporary in nature;
      2. Why it is not feasible to locate US workers;
      3. Identified worker is qualified for the position (if there are minimum educational and /or experience requirements)

The USCIS petition can be filed under premium processing (for an additional $1,000 filing fee, the USCIS will respond to the petition within 15 calendar days of filing).

Upon approval of the USCIS application, approval notices and instructions would be sent directing the employee to make an appointment at the U.S. Embassy and obtain their visa. With the visa, the employee can then gain admission into the U.S. and commence work.

3. Annual Cap
      There are 66,000 H-2Bs available per government fiscal year (October 1st– September 30th), 33,000 of which can be issued during the first six months with the remainder available during the final six months. Similar to the H-1B cap, demand for H-2Bs in recent years has far exceeded the supply.