Rachel Browning’s Legal Blog

            The Employment and Training Administration (ETA) of the Department of Labor (DOL) its regulations to initiate new procedures for the issuance of labor certifications to employers sponsoring H-2B non-immigrants entering to perform temporary nonagricultural labor. The new procedures cover the enforcement of employer compliance and certain attestations made by those employers. Specifically, the new rule revamps (and simplifies) the application process by centralizing processing and by allowing employers to conduct pre-filing recruitment of U.S. workers. In addition, the rule improves the H-2B program by introducing post-adjudication audits and additional procedures for penalizing employers who fail to comply with program requirements.  It also makes technical changes to the regulations relating to both the H-1B program and the permanent labor certification program to reflect operational changes stemming from this regulation.  

H-2B Visa Program – Background and Employer Responsibilities

            Section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (INA) defines an H-2B worker as a “nonimmigrant admitted to the U.S. on a temporary basis to perform temporary nonagricultural labor or services.”  The DOL’s role in the H-2B visa program stems from its obligation, outlined in DHS regulations, to certify, upon application by a U.S. employer requesting admission of H-2B workers, that there are not enough able and qualified U.S. workers available for the position sought to be filled and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers.  DHS regulations provide that an employer may not file a petition with DHS for an H-2B temporary worker unless it has received a labor certification from the DOL, or received a notice that a certification cannot be issued. 

            Under current procedures, the employer must demonstrate that its need for the services or labor is temporary as defined by one of four regulatory standards: (1) A one-time occurrence; (2) a seasonal need; (3) a peak-load need; or (4) an intermittent need.  The employer must currently submit to the state workforce agency a detailed statement of temporary need and supporting documentation with the application for H-2B labor certification. Such documentation must provide a description of the employer’s business activities and schedule of operations throughout the year, explain why the job opportunity and the number of workers requested reflects its temporary need, and demonstrate how the employer’s need meets one of these four regulatory standards. The employer must also establish that the temporary position is full-time and that the period of need is generally one year or less, consistent with the standard under DHS regulations.  Additionally, the employer must recruit from the U.S. labor market to determine if a qualified U.S. worker is available for the position.

            Employers and employees alike, who may be uncertain as to what these rules mean to and require of them, should consult an immigration attorney knowledgeable about employment-based immigration.  The experienced immigration attorneys of Smith & Garg, in The Woodlands, Spring, Conroe and Houston, Texas, can assist you in determining your rights and responsibilities, whether you are an employer or employee.  Contact us today for a consultation.