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H2B Visas - How to successfully win over DOL Advertisement Conditions

Country clubs, hotels and resorts all over the U.S. rely on the hard work of thousands of nonagricultural non-immigrant temporary workers from all over the world. Company H, a well-known country club contacted VisaPro when it wanted to bring in several workers for temporary work at the country club on H2B visas. While the H2B visa was designed specifically for employers who need non-agricultural workers to come to their establishment to work on a temporary basis due to a seasonal, short-term or intermittent need, obtaining the visa is harder than it seems.

As with most employment-based nonimmigrant visas, the employer must submit a petition to USCIS. Before submitting a petition to USCIS, however, an employer must obtain a valid labor certification (ETA Form 9141) from the Department of Labor. By submitting the labor certification, the employer is verifying that there are no U.S. workers who are willing, able, and qualified to do the job required. The employer must conduct bona fide recruitment and document the recruitment with specificity. The employer must show that each and every U.S. worker that applies is not qualified. If a qualified U.S. worker applies for the job, then the applicant may only be rejected for a lawful job-related reason or must be hired.

Background: Company H, as it had done in the past, conducted a bona fide recruitment in order to find qualified individuals to work at the club. According to the original Recruitment Report submitted to the Department of Labor (DOL), the employer properly and lawfully screened all applicants. Out of 24 applicants, Company H hired 4 U.S. workers. According to the original Recruitment Report, however, it appeared only 3 U.S. applicants were hired. According to the original Recruitment Report, 1 U.S. candidate, Mr. R, was qualified for the job and but was not hired because he did not pass a drug-screening exam.  In actuality, Mr. R had in fact been hired but was almost immediately let go because he failed the drug-screening exam. Upon submission of the ETA Form 9141, the DOL issued a Request for Information (RFI) alleging that a qualified U.S. worker was unlawfully rejected and an important term or condition of employment (namely, the ability to pass a drug-screen exam) was not included in the advertisements for the position. The DOL also wanted Company H to prove that U.S. workers were not treated any less favorably through the enforcement of a drug-test requirement. As with all RFI's from the DOL, the employer was given only seven (7) calendar days to correct the application and recruitment report, if necessary, and draft a response! 

VisaPro to the Rescue: When we reviewed the RFI and spoke with Company H, we realized that no U.S. workers were actually unlawfully rejected. Mr. R had not only been offered the position, but had actually been hired and had worked for two weeks.  He was let go from the company because he failed to a pass a drug screening after being hired. Company H did not truly understand the importance of what they thought was an inconsequential piece of information. In attempting to simplify the process, Company H failed to include pertinent information regarding Mr. R in their Recruitment Report or inform us, their attorneys.

VisaPro’s approach to the RFI was multi-faceted. First, we had the employer clear the record by explaining to the DOL that Mr. R was indeed hired and not simply offered the position and disqualified because he failed a drug screen. A revised Recruitment Report was submitted showing the correct information as well as copies of Mr. R’s pay stubs to show that he had indeed been hired.   

Next, we had to tackle the issue about the “terms and conditions of employment” and whether U.S. workers were treated unfairly. BALCA has never addressed “the terms and conditions of employment” in the H2B context. Case law only existed in the context of the permanent labor certification process. After thoroughly reviewing the company's Employee Handbook and other company policies as well as industry standards and bringing in our vast experience with both the ETA Form 9141 and permanent labor certifications, we drafted a well-thought out and thorough explanation. First, we had the employer explain that that maintaining a drug-free environment was an integral piece of this company's business model and that all workers, regardless of their immigration status or position within the company, were expected to be drug-free.

Next, we had the employer explain that it would be onerous and grossly unfair to require any company to list each and every requirement of a job in the advertisement. For example, the employer would not to state in the advertisement that all employees must wear a uniform while they are working even though a violation of this requirement may lead to the employee being fired. While this seems to be a condition of employment, the regulations do not require it to be listed.

Furthermore, even if the DOL felt that a drug screen test was truly a term or condition of employment that was important enough to be listed, we were able to distinguish between a job requirement that is a “condition” of employment and that which is required for “maintenance” of employment. By arguing that the employee was fired because he failed to pass a routine drug screening as opposed to not being hired for failing a drug screening, we showed that the employee failed to maintain employment.

Success:  Less than a week after the response was submitted, the DOL approved the H2B temporary labor certification. By combining a detailed understanding of the labor certification process with a down-to-earth common sense approach, we were able to convince the DOL that the employer had made an inadvertent but non-fatal error on the Recruitment Report, and more importantly, that the employer's recruitment was not flawed because it may have not listed each and every requirement of the job in the job advertisement.

If you have a complicated case or if a case you filed has triggered a request for additional evidence from the government, experienced VisaPro immigration attorneys can guide you through the process and win your case. Contact VisaPro to review your situation and discuss your options.