H-2B Labor Certification

Basic Provisions/Requirements

USCIS regulations require that employers who file H-2B petitions with the USCIS (except for temporary employment on Guam) must include a certification from the Department of Labor stating that qualified workers are not available in the U.S. and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers. If the Department of Labor notified the employer that certification cannot be made, the employer may submit countervailing evidence to USCIS.

To obtain certification, employers must file applications for certification of temporary nonagricultural jobs on Part A of an Application for Alien Employment Certification, Form ETA 750, with the State Workforce Agency (SWA) serving the geographic area where the alien will work. To receive a timely determination, the employer should apply at least 60 but no more than 120 days before the workers are needed.

The employment for which certification is requested must be for less than one year, and the need for the service or labor shall be a one-time occurrence, seasonal need, peak load need, or intermittent need. General Administrative Letter No. I-95, dated November 10, 1994, (amended by General Administrative Letter No. I-97 Change 1, dated December 22, 1997) states the requirements for obtaining temporary nonagricultural labor certifications.

After receiving an application, the SWA prepares a job order and places it into the Employment Service System for 10 days. The employer, after filing the application with the SWA, advertises the job opportunity in a newspaper of general circulation for three consecutive days, 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 must also document that unions and other recruitment sources, appropriate for the occupation and customary to the industry, could not refer qualified U.S workers. After the employer completes the required recruitment, it must submit a recruitment report that explains the lawful job-related reasons for not hiring each U.S. worker that applied.

H-2B Returning Workers

H-2B Returning Worker Attestation

As a supplement to the attached Form I-129, I further certify, as required by section 214(g)(9)(B) of the Immigration and Nationality Act, that the workers listed below are “returning workers” who have been admitted into the United States in H-2B status or changed to H-2B status during one of the last three fiscal years.

Full name of each returning worker A# (if known) Date of Last Admission Date of Change of Status in H-2B Status (if known) to H-2B Status (if known)
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I certify, under penalty of perjury under the laws of the United States of America, that the information included in this certification is all true and correct.
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Signature
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Date
Note: This attestation must be signed by the same person who signed the Form I-129.

H2B Visa Cap

USCIS Reaches H-2B Cap for First Half of Fiscal Year 2009

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) announced July 30, 2008 that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2009 (FY2009). USCIS is hereby notifying the public that July 29, 2008 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2009.

USCIS will reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2009 that arrive after July 29, 2008.

USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on July 29, 2008. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:

Extend the stay of a current H-2B worker in the United States
Change the terms of employment for current H-2B workers and extend their stay; or
Allow current H-2B workers to change or add employers and extend their stay.

For more information on H2B visas

see http://www.cundyandmartin.com/