H-2B Process for Temporary Non-Agricultural Workers

What the Procedure Does

Allows U.S. employers to hire skilled or unskilled foreign workers in temporary or seasonal non-agricultural occupations. The employer must show that there are no qualified, available U.S. workers to fill the existing job opening. The H-2B visa may not be used as a stop-gap measure to fill the employer's regular permanent positions vacant as result of a severe labor shortage in the geographic area of employment. Temporary employment should not be confused with part-time employment which does not qualify for temporary labor certification.

Regulations

20 CFR Part 655 Subpart A

Temporary Employment Standards

The employer's temporary need for the services or labor of a foreign worker must meet one of the following U.S. Department of Labor (USDOL) standards:

1. A one-time occurrence - (a) The employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future. (b) The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
2. Seasonal need - The employer must establish that the services or labor are traditionally tied to a season of the year by a temporary event or pattern and are of a recurring nature.
3. Peak load need - The employer must establish that it regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands, with temporary employees who will not become a part of the regular operations.
4. Intermittent need - The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers for short periods.

Criteria

• The job offered must be one which is truly temporary or seasonal in need.
• The foreign worker must be qualified for the job.
• The job offered must pay at least the prevailing wage that is paid U.S. workers in the same geographic area for that type of job.
• There must be an insufficient number of qualified and willing U.S. workers available for the job to meet the employer's needs.

Validity Period

The H-2B Foreign Employment Certification Application may be valid for a period of time not to exceed one year (maximum of 364 days). The employer is advised that any request for temporary employment exceeding ten months will be closely scrutinized by the USDOL. The employer may renew the application for an additional two years, but must go through the entire application process for each additional year and justify the renewal request. The U.S. Citizenship and Immigration Services (USCIS) issues the H-2B visa to the employer, not to the foreign worker. It is not transferable from one employer to another or from one foreign worker to another. The H-2B is issued for a specific job opportunity, for a specific number of workers, and for a specific employment period.

Required Wages

The Immigration and Nationality Act (INA) requires that the wages paid to a temporary foreign worker be at least the higher of the actual wage rate paid to all other workers with similar experiences and qualifications for the specific employment in question or the prevailing wage rate for the occupational classification in the area of intended employment. The INA does not preclude the employer from paying the foreign worker more than the higher of the actual wage or the prevailing wage. The Minnesota Department of Employment and Economic Development (DEED) will determine the prevailing wage at the time the application is filed. The employer may request the prevailing wage prior to submitting the application. If the wage rate for the position is determined by a collective bargaining agreement, that rate is controlling.

When to File

The employer is advised to file the temporary labor application at least 60-90 days but no more than 120 days before the foreign worker is needed on the job. The application is first submitted to the state workforce agency (DEED).

What to File

1. The employer must submit two completed ETA -750A forms. Both forms must be signed and dated by an official of the employer who is authorized to provide information for the foreign labor certification process. Both forms must be on single sheets of paper, double-sided, as required by the Department of Labor.
2. The employer must submit a statement on company letterhead, signed by the employer signatory, explaining clearly the business necessity of employing a temporary worker. The statement must address one of the temporary employment standards. The statement should be specific in its justification and the length of employment.
3. If an attorney is involved in the application process, a properly executed G-28 must be submitted with the application. If an agent is involved, the agent must be identified in the lower portion of item 24 on the ETA -750A.
4. Procedural guidance enumerated in TEGL 21-06 will apply to all H-2B applications received by the SWA on or after June 1, 2007. The type of acceptable supporting documentation is described in this guidance. This documentation is to be submitted along with the ETA -750A forms and temporary need statement.

Where to File

Mail the ETA -750A forms (2), temporary need statement, and supporting documentation to:

Minnesota Department of Employment & Economic Development
Foreign Labor Certification Unit
332 Minnesota St., Suite E200
St. Paul , MN 55101-1351

Steps in the Filing Process

1. The Foreign Labor Certification (FLC) Unit evaluates the information on the application to determine if the employer is paying the prevailing wage, has not placed restrictive requirements on the job to eliminate U.S. workers from consideration, has limited the employment period to less than one year (364 days maximum), and has submitted a signed statement explaining the employer's temporary need along with pertinent documentation which substantiates the need.
2. The FLC Unit notifies the employer/attorney/agent of any deficiencies in the application and provides the employer the opportunity to correct the deficiencies. All correspondence is faxed. The employer and/or attorney/agent is to include a fax number. If there is no working fax number, include an e-mail address. The employer must respond to the deficiency notice within seven (7) calendar days or face cancellation of the application. Recruitment will not be authorized until the deficiencies are corrected.
3. The FLC Unit instructs the employer about recruitment, which consists of an ad published for three consecutive days in a daily newspaper of general circulation or in a professional, trade or ethnic publication, whichever is most appropriate for the occupation and most likely to bring responses from U.S. workers. The employer is responsible for the cost of the published ads. In addition, the FLC Unit enters a 10-day job listing in its computerized job bank network. The recruitment period lasts for 10 days. The newspaper ad is to run during this 10-day job bank listing.
4. The FLC Unit reviews all resumes and/or letters of interest from individuals for the published job opportunity and refers all qualified applicants to the employer for an interview. All job referrals are faxed. The employer must contact all referred applicants. If the employer is unable to reach an applicant by telephone within 24 hours of receiving the referral, the employer is to send a certified letter to the applicant about the job and how to contact the employer for an interview.
5. The FLC Unit provides the employer with detailed, written instructions how to prepare a recruitment report to summarize the results of the recruitment effort. The employer must always report the names and addresses of all applicants and the specific, lawful job-related reasons for not hiring a referred U.S. worker. The employer is to submit documentation of certified mailing if used.
6. The FLC Unit reviews the employer's recruitment report and notifies the employer and/or attorney/agent of any deficiencies in the report. The employer is given the opportunity to correct any deficiencies.
7. The FLC Unit prepares the application for transmittal to the Chicago National Processing Center (NPC) for a certification determination.
8. The Certifying Officer issues to the employer a "Final Determination" which either grants certification or denies certification. The employer has no appeal rights to the USDOL if certification is denied.
9. To obtain the H-2B work visa, the employer must petition USCIS by completing Form I-129 (Petition for Nonimmigrant Worker). The I-129 and the Certification from the Department of Labor are sent together to the USCIS Center in California. There is a fee for filing the I-129.
10. If the employer receives a denial, the employer may appeal directly to the USCIS California Service Center by filing the I-129 and providing an explanation as to why the petition should be granted.

Important Filing Information

1. The State Workforce Agency (SWA) must transmit the completed application to the Chicago NPC within 30 days of receipt.
2. Incomplete applications will no longer be forwarded to the Chicago NPC. If the employer fails to respond to established deadlines set by the SWA or to provide the required information, the application will be cancelled. If the employer wishes to continue with the H-2B process, it will have to refile the application.
3. For an application which establishes a seasonal need, the employer's supporting documentation must show work has been or will be performed in every month of the requested employment period (work contracts, invoices, etc.). An employer may claim seasonal work if it does not employ workers in the requested occupation other than on a seasonal basis (e.g., landscape workers), since the work cannot otherwise be performed due to weather or other specific conditions establishing the season.
4. For an application which establishes a peakload need, the employer's supporting documentation must include a calendar year payroll report (see TEGL 21-06 for sample). The SWA may request up to two years of payroll records. The term “temporary” means any full-time temporary worker(s) the employer has placed on its payroll. This column can include temporary workers under H-2B, another temporary visa classification, and/or U.S. workers employed through a temporary staffing firm (e.g., Manpower Inc., Kelly Services, etc.). The employer has a peakload need when it has workers in the requested occupation on its payroll year round, but requires additional workers during a peak period.
5. An H-2B application may not be filed more than 120 days prior to date of need listed on the ETA-750A form in item 18b. Applications filed earlier than 120 days will be returned unprocessed to the filer.
6. When choosing a starting date for employment, the employer should allow sufficient time for processing at both the state and federal levels (minimum 60 days). To expedite USCIS processing, the employer may consider Premium Processing.
7. The employer may file for more than one worker for the occupation listed on the ETA-750A. Items 1 and 18 are to contain the number of workers the employer is requesting. DO NOT submit the ETA-750B form. DO NOT submit any documentation about the foreign worker(s).

Email questions or comments to deed.foreignlabor@state.mn.us.

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