For Temporary Employment of Foreign Workers In The United States

WHAT THE PROGRAM DOES:
An H-2B temporary non-agricultural worker is a foreign worker who is coming to the U.S. to perform temporary services or labor if qualified U.S. workers capable of performing such services or labor are not available.

REGULATIONS: 20 CFR Part 655 Subpart A.

VALIDITY PERIOD:
The H-2B Labor Certification Application shall be valid for the period of employment indicated on the Form ETA 9142. However, the validity period cannot exceed 364 days, unless covered under provisions in connection with a one-time occurrence.

QUALIFYING CRITERIA:
The employer's need for the services or labor must be either:

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. (Where a one-time occurrence lasts longer than one year, but less than 18 months, the employer will be issued a labor certification for the entire period of need. Where a one-time occurrence lasts 18 months or longer, Not to exceed 36 months total, the employer will be required to conduct another labor market for the portion of time beyond 12 months).
   
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.
   Part-time employment does not qualify as employment for temporary labor certification under the H-2B program.

REQUIRED PRE-FILING RECRUITMENT:
Time of Filing of Application. An employer may not file an Application for Temporary Employment Certification before all of the pre-filing recruitment steps have been fully satisfied, except where specifically exempted from some or all of those requirements by regulations or special procedures. Applications submitted, not meeting this requirement, shall not be accepted for processing.

An employer filing an application for H-2B Certification must:

1. Obtain a prevailing wage determination from the SWA or NPC depending on the 2009 starting date of need.
   
2. Submit a job order to the SWA serving the area of intended employment.
   
3. Publish two print advertisements on consecutive days, one of which must be on a Sunday. If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer must, in place of a Sunday edition advertisement, advertise in the regularly published daily edition with the widest circulation in the area of intended employment.

For links to additional information, answers to frequently asked questions and complete details on processing labor certification requests under the H-2B Regulations, visit USDOL H-2B Labor Certification.