Seasonal Businesses In U.S. Rely on H2B Program For Temporary Labor
Small and large seasonal businesses continue to face problems obtaining labor to fill hundreds of positions which are vacant because of the unavailability of U.S. workers. The demand and supply ratio between U.S. temporary jobs and U.S. workers has taken a beating in the recent past. Some businesses have either restricted their services or have closed their doors for good because they just can’t get the seasonal workers they need. The H2B program has kept many small and seasonal businesses afloat, helping to insulate them from the shortage of seasonal workers.
The H2B Cap Dilemma
The debate over increasing the number of workers that can be brought into U.S. through the H2B program is heating up. The demand for H2B workers has greatly outstripped the number of visas, currently 66,000, which Congress makes available each year. As with the H-1B program we have seen the cap being reached earlier and earlier each year. The H2B numerical limit set by Congress, like the H-1B program, applies to new filings. Aliens who are eligible for H2B status as “returning workers” do not count against the annual numerical cap. USCIS notes that the “returning worker” provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) have been extended until September 30, 2007, the end of FY 2007. For FY 2007 “returning workers” means workers who were counted against the H2B annual numerical limit of 66,000 during any one of the three fiscal years prior to the fiscal year of the requested start date.
Large scale efforts are underway by pro-immigration groups and understanding members of U.S. Congress to make the returning worker exemption permanent, and to alter the cap to allow the program to realistically expand based on the needs of the American economy.
How Does An Employer Get Workers Through This Program?
USCIS regulations require that all employers who file H2B petitions (except for temporary employment on Guam) must include a certification from the US Department of Labor (“DOL”) stating that qualified workers are not available in the U.S, and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers.
Procedures For H2B Temporary Labor Certification In Non-Agricultural Occupations
The DOL recently published an update on procedures for State Workforce Agencies (“SWA”) and ETA National Processing Centers to follow in processing H2B labor certification applications in non-agricultural occupations (agricultural positions fall under a totally different scheme).
Highlights of The Notice Updating H2B Processing At SWA’s And NPC’s
1.General Provisions: The labor certification process for temporary employment in the U.S. under the H2B classification requires that the Regional Administrator (now National Processing Center (NPC)) Certifying Officer of the Employment and Training Administration (ETA) issue temporary labor certifications on behalf of the Secretary of Labor.
2.Standards for Determining the Temporary Nature of a Job Opportunity: Under the H2B Classification, a job opportunity is considered temporary if the employer’s need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer’s need, not the nature of the duties, that is controlling.
The period of the petitioner’s need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year (i.e., a 2 year construction project).
The employer’s need for temporary non-agricultural services or labor must be justified under one of the following standards:
a.a one-time occurrence,
b.a seasonal need,
c.a peak load need, or
d.an intermittent need.
3.Application Filing Procedures: The employer must file a complete ETA Form 750, Part A, with the 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 program (unlike the H-2A program).Every H2B labor certification application shall include:
a.Two (2) originals of ETA Form 750, Part A, signed and dated by the employer and double-sided. ETA Form, Part B, is not required;
b.Documentation of any efforts to advertise and recruit U.S. workers prior to filing the application;
c.A detailed statement of temporary need on the employer’s letterhead with signature; and
d.Supporting evidence and documentation that justifies the chosen standard of temporary need
The SWAs advise employers to file requests for temporary labor certification at least 60 days before the worker(s) is needed in order to receive a timely determination. Unless the NPC Certifying Officer specifies otherwise, the SWA shall return to the employer any request for temporary labor certification filed by the employer more than 120 days before the worker(s) is needed.
4.SWA Processing Instructions: The SWA reviews the job offer for completeness. The job opportunity must be offered at the higher of the actual wage or the prevailing wage for the position in the area. A job opportunity containing a wage offer below the prevailing wage will not be accepted. The SWA shall determine the prevailing wage, guided by the regulations. The SWA will advise the employer to correct any cited deficiencies before commencing recruitment.
When commencing recruitment, the SWA shall prepare a job order, using the information on the application, and place it into the SWA job bank system for 10 calendar days. During this 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 seeking responses from U.S. workers. The employer shall provide the SWA with actual copies of the newspaper pages (e.g., tear sheets) furnished by the newspaper for each day the advertisement was published. In addition, the employer shall submit to the SWA a written, detailed recruitment report, signed by the employer, setting forth the number of applications received, the number of US workers hired from those applications, and the valid reasons the others were not hired.
After the recruitment period, the SWA shall send the application, results of recruitment, prevailing wage findings, and all other supporting documentation to the appropriate NPC Certifying Officer.
5.NPC Temporary Labor Certification Determinations: The NPC Certifying Officer shall determine whether to grant or deny the temporary labor certification. If the NPC Certifying Officer issues a temporary labor certification, it shall be for the entire duration of the temporary employment opportunity identified on the ETA Form 750, Part A. If extraordinary circumstances establish a need that requires the labor for more than one year, a new application must be filed.
If the NPC Certifying Officer issues a notice that a certification is denied or cannot be made, the Final Determination letter shall detail the reasons why certification cannot be made, and advises the employer of the right to appeal by submitting countervailing evidence directly to the USCIS.
6.Appeal of Notice that a Certification cannot be made: A finding by the NPC Certifying Officer, that a certification cannot be made, is a final decision of the Secretary of Labor and is advisory to the USCIS. There is no provision for reconsideration or appeal of the decision within DOL.The employer may submit countervailing evidence directly to the USCIS that qualified persons in the U.S. are not available, that the employer’s need for the duties to be performed is represented as temporary, and that the DOL’s recruitment policies were observed.
TIP: An applicant outside the U.S. must apply for a visa at the U.S. Consulate with jurisdiction over his place of residence only after receiving H2B approval from the USCIS.
The DOL updated the H2B labor certification processes at SWA’s and NPC’s to be consistent across all office and to ensure that applications are processed in the most time efficient manner. We have noted that with this change the SWA’s and NPC’s have been much more stringent on the type of supporting evidence that they will accept.
To have any chance at approval, an H2B application must have clear and complete supporting evidence. In the past a business located in a tourist city like Naples, Florida, could file an application without a lot of documentation to support the seasonal need (which is obvious for a tourist city like Naples). Now, the SWA’s and NPC’s are no longer approving such applications without clear evidence of seasonal or peak load need.
These stringent measures from the SWA’s and NPC’s have also increased the burden on new businesses that do not have records for a full-year to prove the seasonal nature of their business, though they may be located in a tourist city like Naples, Florida. In the past, being located in a known tourist area would have been enough.
It is essential to qualify the business and the temporary nature of the job for H2B purposes before investing a lot of time and money only to find out from the Department of Labor that the application has not met the H2B guidelines.
Contact VisaPro if you have any questions regarding the H2B Worker category, or need help in filing with the DOL or USCIS. Our experienced attorneys will be happy to assist you.
We also cover the latest happenings on seasonal worker visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.
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