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H-2A/B: Seasonal Workers

The H-2B program allow a U.S. employer or agent to bring foreign nationals to the United States to fill temporary nonagricultural jobs. This classification requires a temporary labor certification issued by the Secretary of Labor. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Basic Requirements

To issue an H-2B certification, the U.S. Department of Labor (DOL) must determine that:

  1. There are not sufficient U.S. workers; and
  2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To participate in the H-2B program, an employer applicant must:

  1. Be an employer with a valid Federal Employer Identification Number (FEIN);
  2. Have a place of business (i.e., physical location) in the United States; and
  3. Have a means by which it can be contacted for employment.

The employer’s job opportunity/opportunities must be:

  1. Temporary (i.e. nine months or less, except one-time occurrences);
  2. Full-time (i.e. 35 or more hours per week); and
  3. Non-agricultural employment within a specified area(s) of intended employment.

Temporary need must be established as one of the following:

With the exception of a one-time occurrence need which can last up to three years, temporary need will not be approved for longer than nine months.

Application Process

Step 1: Obtain a Prevailing Wage (Forms ETA-9141 and 9165). Employer must request and obtain a prevailing wage determination (PWD) from the OFLC Nation Prevailing Wage Center (NPWC) before filing an H-2B application. Employers are encouraged to file at least 60 days before the determination is needed.

Step 2: File a job order with the State Workforce Agency (SWA). Employers must file a job order with the appropriate SWA. 

Step 3: Submit job order and H-2B labor certification to the Chicago National Processing Center (NPC).  Employers must submit the H-2B labor certification (Form ETA-9142B and Appendices), supporting documents, and a copy of the job order filed with the SWA to the Chicago NPC 75-90 days prior to the date of need. 

Step 4Review and Notice of Acceptance. The SWA reviews the job order for compliance within six business days of receipt. The Chicago NPC reviews the H-2B application and job order for compliance within seven business days of receipt. The NPC will then notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer’s application and/or job order. A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/or job order. Each notification will also provide the next steps for the employer to take.

Step 5: Conduct Recruitment of U.S. Workers. Within 14 days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including placing newspaper advertisements; contacting former U.S. workers; contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer’s current employees; and conducting any additional recruitment, if directed by the Certifying Officer.

The Certifying Officer in the Notice of Acceptance will specify a date for the employer’s initial recruitment report. After receipt of the initial recruitment report, the Chicago NPC will determine whether to certify or deny the application and issue the final determination. The final determination will be sent electronically to the employer and, if applicable, the employer’s attorney or agent. 

Step 5: Submission to USCIS. The employer submits the Form ETA-9142B Final Determination: H-2B Temporary Labor Certification Approval, a copy of Appendix B, and information required by USCIS, with the petition package to the USCIS Service Center. The original Appendix B is retained in the employer’s retention file.

Document Retention Requirements

All employers filing an H-2B labor certification are required to retain certain documents and records proving compliance with the regulations, including:

In the event of an audit, an employer is required to provide the information detailed above within 72 hours.