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H-2B Process for Employers 

The employer obligations and worker safeguards related to wages and working conditions are defined by the Immigration and Nationality Act and regulations, which are collaboratively issued with the U.S. Department of Homeland Security (DHS). The enforcement of worker contract provisions and relevant employment laws falls under the purview of the Department's Wage and Hour Division.

Eligibility 

  • The employer must have a legitimate job offer for a temporary, seasonal, or peak-load position.

  • They must demonstrate a shortage of available U.S. workers for the specific job.

  • Employers must provide suitable working conditions and comply with all relevant labor laws.

  • Be an employer with a valid Federal Employer Identification Number (FEIN)

  • Non-agricultural employment within a specified area(s) of intended employment.

According to the U.S. Department of Labor (DOL), to petition for H-2B workers, the jobs you offer must fit one of the following:

  • Intermittent Need: This indicates that the employer has a sporadic or brief job requirement that is not presently being fulfilled by qualified U.S. workers.

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  • One-Time Occurrence: This implies that the employer has either never employed workers for this specific job before and has no plans to do so in the future, or the job itself is permanent but a short-term circumstance has arisen, necessitating the temporary placement of a worker to fulfill the role.

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  • Seasonal Aspect: Labor is conventionally associated with a particular season, often triggered by an event or pattern, and follows a repetitive pattern. This indicates that either the job itself or the requirement for additional workers is repetitive but temporary. Examples include seasonal tasks like snow removal or holiday lighting.

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  • Peakload Criteria: Employers are required to demonstrate three key elements: (1) they consistently employ permanent workers performing the same type of work at the jobsite; (2) due to a seasonal or short-term surge in demand, there is a need to temporarily supplement these permanent workers; and (3) the temporary workers will not become a regular part of the employer's ongoing operations.

U.S. Department of Labor

The Department must determine that:

  1. Insufficient availability of qualified and willing United States (U.S.) workers capable of performing the temporary or seasonal agricultural labor or services desired by an employer for the hiring of temporary foreign workers (H-2A workers).

  2. The employment of H-2A worker(s) will not have an adverse impact on the wages and working conditions of U.S. workers engaged in similar employment.

1

Obtain a Prevailing Wage Determination (PWD) 

Obtain a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC) by filling out the the Application for Prevailing Wage Determination (ETA Form 9141). PWD applications can be submitted electronically through the FLAG System. 

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 Timeframe: at least 60 calendar days before PWD is needed. 

2

File a job order and H-2B application

Submit a job order to the State Workforce Agency (SWA) and file the H-2B application (Form ETA-9142B and Appendices), along with supporting documents and a copy of the job order submitted to the SWA, to the Chicago National Processing Center (Chicago NPC). 

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Timeframe: 90 to 75 days prior to the date of need.

3

Conduct Recruitment of U.S. Workers

Within 14 days of receiving a Notice of Acceptance, the employer is required to adhere to the instructions outlined in the notice. This involves carrying out recruitment activities such as:

  • placing newspaper advertisements

  • reaching out to former U.S. workers

  • contacting the bargaining representative (if applicable) 

  • posting a notice of the job opportunity to the current employees of the employer

  • conducting any further recruitment activities as specified by the Certifying Officer.

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H-2B Package incudes: 

  • Form ETA-9142B

  • a copy of relevant appendices

  • the Prevailing Wage Determination case tracking number issued by the National Prevailing Wage Center

  • a copy of the job order

  • any applicable supporting documentation.

For more information visit: H-2B Temporary Non-agricultural Program

U.S. Citizenship and Immigration Services 

1

Petitioner submits Form I-129 to USCIS

Upon obtaining H-2B employment temporary labor certification from the DOL, the petitioner is required to submit Form I-129 to USCIS. With few exceptions, the petitioner must include the original temporary labor certification as initial evidence along with Form I-129.

2

Prospective workers outside the United States apply for visa and/or admission. 

After Form I-129 receives approval from USCIS, individuals outside the United States seeking H-2B employment must:

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

  2. If a worker does not necessitate a visa, directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry.

For more information visit: H-2B Temporary Non-Agricultural Workers

Websites and Organizations  

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