H-2 Temporary Workers Info from top rated NJ Immigration Firm

Temporary Workers

H-2B Temporary Non-Agricultural Workers

Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

• There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
• The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):

one-time occurrence – A petitioner claiming a one-time occurrence must show that it has:

• • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
  • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

    or

seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

• • Traditionally tied to a season of the year by an event or pattern; and
  • Of a recurring nature.

Note: Employment is not seasonal if the period during which the service or labor is needed is:

• • Unpredictable;
  • Subject to change; or
  • Considered a vacation period for the employer’s permanent employees.

    or

• peakload need – A petitioner claiming a peakload need must show that it:

Regularly employs permanent workers to perform the services or labor at the place of employment;

Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and

The temporary additions to staff will not become part of the employer’s regular operation.

or

• intermittent need – A petitioner claiming an intermittent need must show that it:

Has not employed permanent or full-time workers to perform the services or labor; and

Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, and on workers who are exempt from it, see the “Cap Count for H-2B Nonimmigrants” page.

H-2B Program Process

• Step 1: Petitioner submits temporary labor certification application to DOL. Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the “Foreign Labor Certification, Department of Labor” and “Foreign Labor Certification, Guam Department of Labor” pages.
• Step 2: Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted with Form I-129. (See the instructions to Form I-129 for additional filing requirements.)
• Step 3: Prospective workers outside the United States apply for visa and/or admission. After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:

Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or

Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry.

* Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip step 1 in the H-2B process.

H-2B Eligible Countries List

Except as noted below, H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2014, nationals from the following countries are eligible to participate in the H-2B program:

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.)

Note: If you request H-2B workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays.

Period of Stay

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit. See “Calculating Interrupted Stay for H-2 Classifications” for additional information.

Family of H-2B Workers

Any H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:

• No show: The H-2B worker fails to report to work within 5 work days of the latter of:

The employment start date on the H-2B petition; or

The start date established by the employer;

• Abscondment: The H-2B worker leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
• Termination: The H-2B worker is terminated prior to the completion of the H-2B labor or services for which he or she was hired; or
• Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.

Petitioners must include the following information in the employment-related notification:

1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
2. The reason for untimely notification and evidence for good cause, if applicable;
3. The USCIS receipt number of the approved H-2B petition;
4. The petitioner’s information, including:
   • Name
   • Address
   • Phone number
   • Employer identification number (EIN)
5. The employer’s information (if different from that of the petitioner):
   • Name
   • Address
   • Phone number
6. The H-2B worker’s information:
   • Full Name
   • Date of birth
   • Place of birth
   • Last known physical address and phone number

Additionally, to assist USCIS with identification of the H-2B worker, submit the following for each H-2B worker, if available:

• Social Security Number, and
• Visa Number

Note: USCIS defers to DOL’s definition of “workday.” According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her “principal activities.”

How do I notify USCIS?

Notification should be made via email or mail to the USCIS Service Center that approved the I-129 petition. Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center

By email: CSC-X.H-2BAbs@dhs.gov

By mail:

California Service Center
Attn: Div X/BCU ACD
P.O. Box 30050
Laguna Niguel, CA 92607–3004

Vermont Service Center

By email: VSC.H2BABS@dhs.gov

By mail:

Vermont Service Center
Attn: BCU ACD
63 Lower Welden St.
St. Albans, VT 05479

Fee-Related Notifications to USCIS

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an alien H-2B worker as a condition of employment.

Petitioners may avoid denial or revocation of their H-2B petitions if they notify USCIS that they obtained information concerning the beneficiary’s payment (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2B petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of the filing of its H-2B petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.

Petitioners must notify USCIS of an H-2A worker’s payment or agreement to pay prohibited fees to a recruiter, facilitator, or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.

Petitioners must include the following information in the fee-related notification:

1. The reason for the notification;
2. The USCIS receipt number of the approved H-2B petition;
3. The petitioner’s information
   • Name:
   • Address
   • Phone number
4. The employer’s information (if different from that of the petitioner):
   • Name
   • Address
   • Phone number
5. Information about the recruiter, facilitator, or placement service to which the beneficiaries paid or agreed to pay the prohibited fees:
   • Name
   • Address

Fees not prohibited are:

• The lesser of the fair market value or actual costs of transportation; and
• Any government-mandated passport, visa, or inspection fees to the extent that the payment of such costs and fees by the H-2B worker is not prohibited by statute or other laws. This includes, but is not limited to, the FLSA, DOL regulations, case law, and DOL interpretations of the FLSA and other relevant labor laws.

How do I notify USCIS?

Notification should be made via email or mail to the USCIS Service Center that approved the I-129 petition. Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center

By email: CSC.H2BFee@dhs.gov

By mail:

California Service Center
Attn: H-2B Fee
P.O. Box 10695
Laguna Niguel, CA 92607–1095

Vermont Service Center

By email: VSC.H2BPROPLACEMENT@dhs.gov

By mail:

Vermont Service Center
Attn: BCU ACD
75 Lower Welden St.
St. Albans, VT 05479