The H-2B nonimmigrant visa allows foreign workers to enter the U.S. temporarily to perform non-agricultural services or labor on a one-time, seasonal, peakload, or intermittent basis. Before an H-2B visa is granted, the intending employer must first apply for a temporary labor certification from the Department of Labor. If qualified U.S. citizen workers are not available and the alien's employment will not adversely affect the wages and working conditions of similarly employed U.S. citizen workers, the Employment and Training Administration (ETA) will issue a temporary labor certification. How does the ETA determine that a particular job opportunity qualifies?
A. A job opportunity must be considered temporary.
- A job opportunity is considered temporary for the purposes of H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the actual job is permanent or temporary. In other words, it is the nature of the employer's need, not the nature of the job duties that is of concern.
B. Only full-time employment can be certified.
- part-time employment is not sufficient to qualify
C. The employer's need must be for one year or less.
- However, there are extraordinary circumstances where an employer's need exceeds one year. In such instances, a new application for temporary labor certification is required for each period beyond one year.
D. The job must fall under one of the following categories:
1. One Time Occurrence - The employer must establish that is has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future.
OR
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
2. Seasonal Need - The employer must establish that the services or labor is traditionally tied to a season of the year by an even or pattern and is of recurring nature. The employer must specify the seasons during which it does not need the services or labor. The employment isn't considered seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or considered a vacation period for the company's permanent employees.
3. Peakload Need - The employer must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and the temporary additions to staff will not become permanent.
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 to perform services or labor for short periods.
