Seasonal Businesses In U.S. Rely on H2B Program For Temporary Labor
Seasonal businesses in U.S. rely on H2B program for temporary labor. Small and large seasonal businesses continue to face problems obtaining the required personnel to fill hundreds of positions which are vacant because of the unavailability of U.S. workers. Many restrict their services or have to shut down because they just can’t get the workers they need. The H2B program has kept many small and seasonal businesses afloat, helping to insulate them from the shortage of seasonal or temporary workers.
The H2B Cap Dilemma
The debate over increasing the number of workers that can be brought into U.S. through the H2B program continues to be a hot topic. 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 applies to new filings that are not extensions of stay. Unfortunately, Congress has decided not to reauthorize the “returning worker” provisions. This means that workers who are currently abroad and who were previously counted in the H-2B counted need to go through the H-2B cap again. It’s important for employer to remember that this is vastly different from the H-1B Cap rules.
While 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, the situation continues to be dire.
How Does An Employer Get Workers Through This Program?
USCIS regulations require that all employers who file H2B petitions 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
1.General Provisions: The labor certification process for temporary employment in the U.S. under the H2B classification requires that the Dept. of Labor’s Employment and Training Administration (ETA) issue temporary labor certifications.
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.Obtain a Prevailing Wage Determination: The The first step the employer must take is to obtain a Prevailing Wage Determination from the Dept. of Labor. The ETA Form 9141 can be submitted electronically through the iCERT portal.
5.Advertise The Position: The employer needs advertise the job in a Newspaper for no less than 2 days, one of which must be a Sunday. The ads must run concurrently with the Job Order.
The Job Order and Advertisements must contain:
a.Employers name and contact information
b.The location of the employment
c.If transportation is provided, it must be stated
d.A description of the job opening which includes the duration of the job
e.The expected work hours and days and the availability of overtime
f.The offered wage
g.Statement that the employment is temporary
h.The number of openings
6.Application Filing Procedures: The employer must submit ETA Form 9142B with the Dept. of Labor’s Chicago National Processing Center.
Every H2B labor certification application shall include.
a.The completed ETA Form 9142B and Appendix B
b.Documentation of any efforts to advertise and recruit U.S. workers prior to filing the application and the Recruitment Report
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 application can be submitted by mail or electronically.
7.NPC Temporary Labor Certification Determinations: The NPC Certifying Officer shall determine whether to certify, deny or issue an Request for Information (RFI). 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 9142B. 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.
9.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.
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.
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.
To have any chance of approval, an H2B application must be strategically planned out and prepared carefully. Employers must be ready to prove that the “temporary” nature of the offered position(s). 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 work visa category, or need help in filing with the DOL or USCIS. Our top immigration attorneys will be happy to assist you based on our attorneys’ near 100% success rates.
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