21. What is the processing time for H-2B visa?
The employer should file the H-2B petition at least 60 days but not more than 120 days before the worker is needed. As this is a lengthy process, the employer must allow enough processing time for delays and correction of application errors.
Note:The DOL will return H-2B certification applications filed more than 120 days before the worker is needed
22. What is the general procedure to obtain a temporary Labor Certification?
A temporary Labor Certification must be obtained from the U.S. Department of Labor to employ temporary or seasonal workers. Before the USCIS can approve an employer’s petition for such workers, the employer must file an application (Form ETA-9142) with the DOL stating that there are not sufficient workers who are able, willing, qualified, and available and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.
23. What is the validity of temporary Labor Certification?
A temporary labor certification is:
- Valid only for the number of foreign nationals, the occupation, the area of employment, the specific activity, the period of time, and the employer specified in the certification
- Limited to one employer’s specific job, opportunity; it may not be transferred from one employer to another
24. Can H-2B labor certification applications filed by job contractors be certified as temporary jobs?
In the vast majority of cases, H-2B applications filed by job contractors may not be approved since they are for permanent jobs. The temporary or permanent nature of the work involved in such applications is determined by examining the job contractor’s need for the workers, rather than the needs of its customers. When examined from this perspective, the need for the workers involved in applications filed by job shops is almost always a permanent need. A job contractor, that is in the business of supplying the labor needs to one or more customers, has a permanent need for such workers outside the scope of the particular agreement, and should be informed that he/she may wish to consider filing a permanent application.
Note: In order to meet its burden of proof, such a contractor would need to establish that it had not previously employed workers to perform this particular type of service and that there was no possibility that it would do so again after the performance of the particular contract. Under this scenario, a job contractor might be able to qualify for H-2B status based on the work being either a peak load or a one-time occurrence.
25. When should the Labor Certification Application for H-2B visa be filed?
A complete DOL Form ETA-9142, Application for Alien Labor Certification, must be filed at least 60 days before the first date on which H2B workers are needed. however, recruitment for the labor certification can not be started more than 120 days before the workers are needed. If it is accepted or amended within the required time frame and complies with the regulations, the certifying officer will make a certification determination 30 days before the date on which the workers are needed.
Note: In emergency situations the regional administrator may waive the time period specified, provided the regional administrator has an opportunity to obtain sufficient labor market information on an expedited basis on the U.S. worker availability. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived.