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Supplementing Your Workforce With H-2Bs

The H-2B program allows employers to hire non-agricultural workers on a temporary basis and may be one way to help overcome the current labor shortage in the U.S.

Each year there typically are 66,000 H-2B visas available, and this is split into two halves.  There are 33,000 for workers starting October 1- March 31 and another 33,000 for workers starting April 1- September 30.

However, USCIS has recognized the shortage of available workers and has supplemented the H-2B program with additional visas. In January 2022 USCIS added an additional 20,000 visas for positions with start dates on or before March 31, 2022.  More recently USCIS added an additional 35,000 visas for positions with start dates between April 1 and September 30.

Who qualifies?

Only workers from certain countries can qualify for an H-2B visa. The following link provides a list of eligible countries:

https://www.uscis.gov/newsroom/alerts/dhs-announces-countries-eligible-for-h-2a-and-h-2b-visa-programs

How long can someone stay on H-2B?

USCIS will approve an H-2B for as long as is listed on the labor certification and may be extended in 1-year increments up to a maximum of 3 years.

How does someone qualify for H-2B?

In order to qualify for H-2B the employer must demonstrate a need based on the following criteria:

  1. One-time occurrence: An employer must demonstrate that it has a permanent employment situation, but a temporary event of short duration has created a need for this temporary occurrence. Furthermore, it has not employed workers to perform the services or labor in the past and it will not need workers in the future.
  2. A peak-load need: An employer must show that it regularly employs permanent workers to perform labor or services and that they need to supplement their staff on a temporary basis due to a short-term or seasonal demand. The employer must also show that the H-2B staff will not become part of the employer’s regular operation.
  3. Seasonal need: The employer must demonstrate the need for staff seasonal in nature. Employment is generally not considered seasonal if the period during which the staff is required is subject to change or is unpredictable or if it is considered a vacation period for the employer’s permanent employees.
  4. Intermittent need: The employer must demonstrate that it has not employed full-time or permanent workers to perform the labor or services, but that it only intermittently or occasionally needs temporary workers to perform the labor or services for short periods.

How does an Employer apply for H-2B for its workers?

Applying for an H-2B is a multistep process and generally requires the following steps to be taken:

Step 1- Submit the Prevailing Wage Determination (PWD) to the Department of Labor (DOL)

 

Step 2- Submit the Job Order to the relevant State Workforce agency and an H-2B application to DOL (Temporary Labor Certification (TEC) – Form ETA-9142B)

  • Job Order– This is done no more than 90 days prior and must remain open until 21 days before the required start date. Employers must apply for and receive PWD before filing the Job Order with SWA.

 

  • Temporary Labor Certification (TEC)Form ETA-9142B– this is filed through the FLAG system.

 

Within 7 business days, Employers will receive either an NOA (Notice of Acceptance) or NOD (Notice of Deficiency).

Step 3- Recruitment- The NOA specifies the recruitment steps that must be taken within 14 days.

 

  1. Employers must contact former US workers laid off within 120 days of the start date who were employed in the previous year and try and solicit their return to the job.

 

  1. Internal Notice Posting:  Employers must post an internal notice for at least 15 consecutive business days in two conspicuous places.

 

  1. DOL will post the job on their own website, Seasonaljobs.dol.gov.- DOL will post an electronic advertisement on this website automatically based on information entered in the Job Order. While the Employer does not need to do anything, they must review resumes up until 21 days before the start date.

 

  1. DOL can require the Employer to do additional recruitment if necessary.

 

Step 4. Preparing and submitting the Recruitment Report (The notice of acceptance of the temporary labor certification will include a date by which a recruitment report must be prepared.).  This recruitment report has to be submitted to OFLC, Employment and Training Administration by the date included in the NOA.

Step 5- File Form I-129 requesting H-2B Visa.  This can only be done once DOL issues Temporary Employment Certification.

What fees are required and ss Premium Processing available for H-2B?

Attorney fees will vary from one Attorney to the next, but the following filing fees will apply to every filing:

$460.00 I-129 Filing Fee for H-2B Application

$150.00 Fraud Prevention and Detection Fee (initial petition)

$1,500.00 for Premium Processing (Optional)

The H-2B is an extremely complex process and any employers interested in filing for an H-2B should contact an experienced Attorney.  For questions related to H-2B please contact PLG Partner Chris Prescott at cprescott@patellegal.com.

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