Overview : H2B Temporary Workers
Posted Sep 14, 2001

This article is another in our series presenting an overview of U.S. immigration law. Last week, in the September 7, 2001 MurthyBulletin, we discussed the H2A category for temporary agricultural workers in an article entitled Overview : H2A Temporary Agricultural Workers. We now move on to the H2B category for skilled and unskilled non-agricultural workers.

The H2B category is quite similar to the H2A, in that both require the worker to be temporary and a labor certification is required to demonstrate the unavailability of U.S. workers. For both categories, the work must not be part time. In addition, workers under these categories must prove that they have a "nonimmigrant" or temporary intent.

Temporary Need for Services

As mentioned above, for both the H2A and the H2B, the employer's need for the worker's services must be temporary. For the H2A, the work should be seasonal. For the H2B, there are four basic types of temporary need. These are:

a. one-time occurrence

The employer must show that it has not previously employed workers to fill the position, and that it will not need such services in the future. Rather, there must be a temporary event of short duration. Examples of one-time occurrences are commercial remodeling projects or special events such as international conferences or sporting events.

b. seasonal need

The services are traditionally connected to a particular time of year because of a recurring event or pattern. The employer must specify the time of year when the workers are needed, and the dates the services are not needed. Therefore, the period of time each year when the workers are not needed must be fixed and predictable. Examples of seasonal workers are landscaping and fishery workers.

c. peak-load need

The employer must show that it regularly employs permanent workers to perform the services but has a temporary need for additional staff because of a short-term demand. The temporary workers must not become a permanent part of the employer's workforce; that is, the need must not be ongoing.

d. intermittent need

The employer must demonstrate that it has an occasional need for workers, from time to time but not on a regular basis.

As can be seen from the above description, each case must be carefully documented and the U.S. Department of Labor (DOL) makes determinations on a case-by-case basis.

Labor Certification

The employer must also show that there are no U.S. workers in the local area who are capable of performing such services. The H2B process therefore involves a labor certification (LC), somewhat similar to that used for permanent, employment-based immigration. Please note that though many people get confused with the terms Labor Condition Application (LCA) and the LC, the former is used only with the H1B program and does not generally require an employer to go through the elaborate and time-consuming LC process.

Approval of the labor certification constitutes a finding that (a) there are no U.S. workers available, and (b) the employment of the foreign worker will not affect the wage rate and working conditions of similarly employed U.S. workers. In contrast with the H2A, the labor certification approval for the H2B category is only advisory, so the INS could arrive at its own conclusion when processing the petition.

The temporary labor certification application is filed with the local state-level labor office, and processed in a relatively expedited manner. In this regard, efforts to recruit U.S. workers must be documented. As with the permanent LC, the regional office of the U.S. Department of Labor (DOL) makes the final determination. DOL usually grants applications for no more than 1 year, although in practice it may be nearly impossible to obtain approvals for longer than 10 months. The U.S. Department of Labor (DOL) may even consider 6 months to be too long. Much is left to the discretion of the individual DOL officer.

The Department of Labor has published the following guidelines, which need to be followed for H2B cases :

a) Is the job in question in the employer’s regular business and are/is the duties / equipment similar to regular work?

b) Is the time period for the visa reasonable?

c) Is the number of foreign workers requested reasonable for the job?

d) Does the employer frequently request this category?

e) Are there any alternatives?

Upon approval of the LC, a petition is then submitted to INS. Multiple beneficiaries can be included on the same petition as long as they are performing the same services, for the same time period and in the same location. For the H2B, all beneficiaries must be named, except in emergency situations. In contrast, for the H2A, multiple beneficiaries outside the U.S. do not need to be named.

Admission and Extension

H2B workers are admitted for the time on the Labor Certification, with a maximum of 1-year. Extensions may be granted but for not more than 12 months at a time and with a maximum stay of 3 years. If an extension is required, a new Labor Certification is required or a notice that the Labor Certification cannot be made. The H2B category has a quota of 66,000 per year.