H2B Visas

Update October 12, 2021:   USCIS has received enough petitions to reach the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2022.  

• September 30 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2022.  
• USCIS will reject new cap-subject H-2B petitions received after Sept. 30 that request an employment start date before April 1, 2022.

 USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

• Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

The 2015 rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. The revisions strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.  

Specifically:

• The job must be full-time, bona fide, and temporary.
• Terms & conditions offered as well as accepted qualifications extended to H2B workers must be similar to those enjoyed by similarly employed U.S. workers.
• The dates of, number of employees needed, and the reason for the temporary need are required to request labor certification.
• The employer must obtain a prevailing wage determination and submit a job order to the State Workforce Agency, publish advertisements, contact the local union as a recruitment source is applicable, show records of all rejections of U.S. workers, and show lack of success in locating sufficient numbers of qualified U.S. applicants.

The Employer Must: 

1. Obtain a prevailing wage determination from the National Processing Center; 
2. Submit a job order to the State Workforce Agency (SWA) serving the area of intended employment; 
3. Publish advertisements in compliance with 20 C.F.R. § 655.15(f); 
4. Contact the local union as a recruitment source if the employer is a party to a collective bargaining agreement governing the job classification that is the subject of the H-2B labor certification application;
5. Retain records of all rejections of U.S. worker applicants for the job opportunity for which labor certification is sought;
6. Be unsuccessful in locating sufficient numbers of qualified U.S. applicants for the open job opportunity; and,
7. Comply with applicable Federal, State, and local employment-related laws, including health and safety laws. 

The Employer Must Not: 

1. Reject U.S. applicants for the job opportunity for which the labor certification is sought for reasons other than lawful, job-related reasons. 
2. Seek H-2B certification for a specific job opportunity that is vacant because the former occupant(s) is (are) on strike or locked out in the course of a labor dispute involving a work stoppage. 
3. Place any H-2B worker outside the area of intended employment listed on the H-2B certification unless the employer has obtained a new temporary labor certification from the Department.  

 The Employer Must:  

1. Offer and pay the H-2B worker no less than the highest of the prevailing wage, applicable Federal, State, or local minimum wage during the entire  approved H-2B labor certification period, which:  A). Is not based on commissions, bonuses or other incentives unless guaranteed and paid by the employer on a weekly, bi-weekly, or monthly basis; and  B.) Does not include any deductions that would violate the Fair Labor Standards Act (FLSA) for an employer covered by the FLSA. 
2. Make all deductions from the workers’ paychecks that are required by law. 
3. Contractually forbid any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees except as provided in the statute or as reimbursement for costs that are the responsibility of the worker, such as government required passport or visa fees.
4. Avoid receiving directly or through an attorney or agent payment of any kind for an activity related to obtaining the labor certification, including payment of the employer’s attorney’s or agent’s fees, H-2B application, or recruitment costs.

1. Will offer terms and working conditions normal to U.S. workers similarly employed in the area of intended employment, which are no less favorable than those offered to H-2B workers.

2. Will offer a job opportunity to H-2B workers that is a bona fide, full-time temporary position with qualifications that are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations.

3. Will truly and accurately state the dates of temporary need, reason for temporary need, and number of positions being requested for labor certification.

The Employer:

1. Has & will not lay off any similarly employed U.S. worker in the occupation for which the labor certification is sought:  A.) In the area of intended employment within the period from 120 calendar days before the date of need through 120 calendar days after the date of need;  B.) Except where the employer has offered the job opportunity for which the labor certification is sought to laid-off U.S. workers and such workers either refused the job opportunity or were rejected only for lawful, job-related reasons. 
2. Will not place, if a job contractor, any H-2B worker with any other employer or at another employer’s worksite unless:  A.) The employer first makes a bona fide written inquiry as to whether the other employer has displaced or intends to displace any similarly employed U.S. workers within the area of intended employment within the period beginning 120 calendar days before through 120 calendar days after the date of need; and, B.) The other employer provides written confirmation that it has not so displaced and does not intend to displace U.S. workers; and, C.)  All worksites are listed on the H-2B certification, including amendments or modifications. 

The Employer:

1. Will notify the Department and DHS in writing of the separation from employment of an H-2B worker, not later than two work days after such separation is discovered by the employer, if such separation occurs prior to the end date of the employment specified in the H-2B application.
2. Will notify the H-2B workers:  A) Of the requirement that they leave the U.S. at the end of the authorized period of stay provided by DHS or separation from the employer, whichever is earlier, absent any extension or change of such workers’ status or grace period pursuant to DHS regulations; and, B) That the employer is liable for return transportation of the workers if the workers are dismissed before the end of the authorized period of stay. 

• Failure to meet any of these obligations may result in the assessment of civil money penalties, a recommendation that the employer be disqualified from approval from future petitions (debarment), reinstatement of displaced U.S. workers, payment of back wages owed to H-2B workers, and other legal or equitable remedies as the Administrator of the WHD determines to be appropriate.