United States Citizenship and Immigration Services (USCIS) would like to clarify to associations and their members certain regulatory requirements for filing petitions for H-2B classification on behalf of foreign workers. USCIS issued this clarification so that the public can be better informed of filing requirements and avoid unnecessary denials of individual petitions that may be otherwise approvable. USCIS has noticed a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than file an individual petition with USCIS, some employers who are members of an association have sought H-2B non-agricultural workers via a “master” petition filed by their association.
A “master” petition is a petition that:
- Is filed by an association (listing the association as petitioner) on behalf of several of its member-employers
- Includes multiple temporary labor certifications which have been issued by the Department of Labor (DOL) for each individual member-employer, rather than a single temporary labor certification certified for the particular association itself as an employer or “joint employer.”
While USCIS recognize that the facts of each case may be different, for the reasons discussed below, association member-employers generally should file a petition for H-2B classification directly and separately (listing themselves as the petitioner) with USCIS, rather than through a “master” petition filed by an association (listing the association as the petitioner) on behalf of several of its members. Petitions filed by associations that fail to meet the petitioner requirements for H-2B classification will be denied.
Discussion and Analysis
There are several reasons why H-2B petitions filed by associations on behalf of their employer members generally would not qualify for H-2B classification:
In consideration of whether any association meets the requirements to file an H-2B petition as an agent, the burden is on the association, as the petitioner, to demonstrate that the type of workers sought in their petitions are either traditionally self-employed and/or that the alien beneficiaries of the petition use agents to arrange short-term employment on their behalf with numerous employers. Absent a showing in the H-2B petition that such workers meet either of these two criteria, a petition filed by an industry association would be subject to denial. Please note that cases involving “master” petitions adjudicated prior to this clarification that may have been inadvertently approved will not be subject to revocation, absent evidence of some other error, fraud or misrepresentation.