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.