"H-2B" Essential Workers

The H2-B category is generally used for non-agricultural unskilled or semi-skilled workers, or for skilled workers whose training is vocational rather than academic, such as landscapers and construction workers. There are many restrictions on the use of this category and the application process is complex. It is not a solution for workers hoping to work in the United States indefinitely. However, it is useful to employers in many industries who need to fill acute, short-term labor shortages involving multiple openings.H-2B petitions can be approved only if can be proven that no U.S. workers are available to fill the position.

Since January 18, 2009, there has been a big change to the H-2B application process. First, the employer must obtain a prevailing wage from the Department of Labor's National Processing Center in Chicago, not from the individual states as before. This must be done in the 90 day period before recruitment begins, on new form ETA-9141. Once the prevailing wage is obtained, the employer must conduct recruitment beginning no sooner than 120 days before the employment is expected to begin. The recruitment must be conducted by the employer before filing the application. The recruitment consists of two help wanted ads in the newspaper, one of which must be on  Sunday. The employer must also request a ten day job order from the local State Workforce Agency. If insufficient qualified U.S. workers are found, the employer then files an application for temporary labor certification with the Processing Center in Chicago by mail. This is done on new form ETA-9142. The old form ETA-750 is no longer used. The individual state agencies no longer process the applications.

The employer must also prove that the job is temporary. The law says the temporary need may not last more than one year. In reality, ten months is the outside limit that will usually be approved. New regulations provide an exception of up to three years for a one time occurrence (such as Hurricane Katrina). The temporary need must be one of the following:

• Seasonal, such as ski instructors, landscape laborers, deckhands on seasonal fishing boats, or construction workers in northern parts of the U.S.;
• A one-time occurrence, such as coordinating a company's transfer of its corporate headquarters, or clean-up workers following the World Trade Center attack;
• A peakload occurrence, such as sales clerks during the Christmas holidays, or home health aides during a flu outbreak;
• An intermittent event, such as electrical linesmen to repair damage following an ice storm, or phone book distributors.

Once the DOL approves the temporary labor certification, an I-129 petition must be filed with Citizenship and Immigration Services (CIS) by the employer. Premium processing is available in urgent cases. The I-129 may request consular processing, port of entry notification, a change of status to H-2B, or an extension of stay in H-2B status. Except for Canadian citizens, H-2B beneficiaries outside the U.S. must apply for an H-2B visa once the petition is approved.

H-2B workers must have a temporary intent, not immigrant intent. They must have a foreign residence they have no intent to abandon. An H-2B visa may be denied if the foreign worker has taken steps towards permanent residence. If an H-2B worker has spent three years in the U.S., he must remain outside of the U.S. for six months before readmission in H-2B status.

There are 66,000 H-2B visas available each year. In recent years this number has been exceeded, so H-2B visas became unavailable. Under a new law, half the visas are available beginning October 1 of each fiscal year, and half are available beginning April 1. This is so there are visas available during the summer, when many H-2B workers such as landscapers and hospitality workers are needed. Employers should begin the process of applying for these visas beginning with the prevailing wage as much as seven months in advance.

For the last several years, Congress passed a law that exempts "returning workers" from the quota. A returning worker is any person who has been accorded H-2B status at any time during the last three fiscal years. This law has not been re-authorized and is not now in effect. This has aggravated the shortage of H-2B workers in many industries.

The H-2B is a complex and time-sensitive temporary work visa. We can help.