By Henry J. Chang
GENERAL
The H-2 category is available to an alien coming the United States to perform either skilled or unskilled labor. The H-2B worker is defined at 101(a)(15)(A) of the Immigration and Nationality Act (“INA”) as an alien:
(a) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services, as defined by the Secretary of Labor in regulations and including agricultural labor defined in section 3121(g) of the Internal Revenue Code of 1954 and agriculture as defined in section 3(f) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(f)), of a temporary or seasonal nature, or (b) having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country, but this clause shall not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession.
The H-2 category consists of two subcategories: (a) the H-2A for temporary agricultural workers, and (b) the H-2B for temporary workers other than agricultural workers. Graduates of medical schools entering the United States to work as members of the medical profession are specifically excluded from this category. Only the H-2B category will be discussed here.
8 CFR 214.2(h)(6)(i) also defines the H-2B temporary nonagricultural temporary worker as:
an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing United States workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of United States workers.
Clearly, the alien must be entering for a temporary stay, the services or labor required of the alien must be temporary, there must not be any US workers available and the terms of employment must not sufficiently high to have attracted US workers.
The definition contained in INA 101(a)(15)(A) specifically requires that the alien worker be coming to work “temporarily” and to maintain a foreign residence abroad. This means that the alien in H-2B status must have nonimmigrant intent in order to qualify for H-2B status.
The presumption of immigrant intent contained in INA 214(b) clearly applies to the H-2B category. In fact, 8 CFR 214.2(h)(16) specifically states that the approval of a permanent labor certification, or the filing of a preference petition for an alien currently employed by the same petitioner, shall be a reason, by itself, to deny the alien’s extension of stay.
The meaning currently applied to the phrase “temporary services or labor” in the context of H-2B is discussed in the precedent decision of Matter of Artee 18 I&N Dec. 366 (Comm’r 1982). In that case, the Immigration and Naturalization Service (“INS”) looked to the nature of the employer’s needs rather than to the nature of the duties. The issue to be considered was whether or not the petitioner had filled the position in the past and whether or not its need would end in the definable future.
8 CFR 214.2(h)(6)(ii) states that “temporary services or labor” under the H-2B classification refers to any job in which the petitioner’s need for the duties to be performed by the employee(s) is temporary, whether or not the underlying job can be described as permanent or temporary. In order for the need for services to be temporary, the position must be for a year or less, absent extraordinary circumstances. In addition, it indicates that the petitioner’s need for the services or labor must be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.
These various types of employer needs are defined as follows:
One-Time Occurrence – The petitioner must establish that it 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 that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Seasonal Need – The petitioner must establish that the services or labor is traditionally tied to a season of the year by any event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees.
Peakload Need – The petitioner 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 that the temporary additions to staff will not become a part of the petitioner’s regular operation.
Intermittent need – The petitioner 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.
The requirement that unemployed persons capable of performing such service or labor cannot be found in the United States can be satisfied in two ways. An application for a labor certification must first be submitted to the Department of Labor (“DOL”). The H-2B petition must be accompanied either by the certification or a DOL notice that the certification cannot be made.
8 CFR. 214.2(h)(6)(iii)(C) states that the petitioner may not file an H-2B petition unless the United States petitioner has applied for labor certification with the Secretary of Labor (in the case of employment in the United States) or the Governor of Guam (in the case of employment in Guam) within the time limits prescribed or accepted by each, and has obtained a labor certification.
Regulations concerning temporary certifications are found at 20 CFR 655. However, more important information about the DOL’s procedures is found in General Administration Letter No. 10-84 which appears as an appendix to 214.2(h)(1) of the INS Operations Instructions (“OI”). These rules should not be confused with the DOL’s regulations dealing with permanent labor certifications which appear at 20 CFR 656.
As the role of the Department of Labor or the Governor of Guam is only advisory, the INS may still approve the petition despite a DOL denial to issue a labor certification. However, such opinions carry significant weight with the INS.
Both the Secretary of Labor or the Governor of Guam may issue a temporary labor certification for a period of up to one year, except for in the US Virgin Islands where temporary labor certifications may be approved only for entertainers and athletes and only for periods not to exceed 45 days.
If the petitioner receives a notice from the Secretary of Labor that certification cannot be made, a petition containing countervailing evidence may be filed. The evidence must show that qualified workers in the United States are not available, and that the terms and conditions of employment are consistent with the nature of the occupation, activity, and industry in the United States. All such evidence submitted will be considered in adjudicating the petition.
Pursuant to 8 CFR 214.2(h)(6)(vi)(E), the employer of an H-2B alien will be liable for the reasonable costs of return transportation of the alien abroad, if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission. If the alien voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. This provision applies to any employer whose offer of employment became the basis for the alien obtaining or continuing H-2B status.
According to INA 214(g)(1)(B), the total number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status during any fiscal year may not exceed 66,000. The validity of the H-2B visa petition is limited to one year. As labor certifications for H-2B purposes are valid for no more than one year, each extension of stay will require a new labor certification. In addition, the H-2B category limited to a continuous stay of three years, which will occur only in the rarest of cases. This three year cap is inclusive of any time spent in any H or L (intracompany transferee) status. A new three-year cycle will begin after the alien has resided and physically been outside the United States for at least six months.
Dependent spouses or minor children who are accompanying or following to join the H-2B beneficiary in the United States, are entitled to H-4 classification and are subject to the same visa validity, period of admission, and limitation of stay as the principal alien. They are also subject to the residence abroad requirements imposed upon the principal beneficiary.
SPECIAL PROCEDURES
OI 214.2 refers to situations in which special H-2B processing procedures will apply. These situations are briefly discussed below:
Canadian Musicians Working Within Fifty Miles of the Canadian United States Border
The Department of Labor has pre-certified that qualified persons are unavailable in the Canadian-United States border area (fifty miles into the United States, along the Canadian border) and that the admission of Canadian musicians in such areas for periods not in excess of thirty days would not adversely affect the wages and working conditions of workers in the United States who are similarly employed. Where the Canadian-United States boundary line is within a body of water, such as the Great Lakes, the fifty-mile area extends inland from the United States shore of that body of water. The pre-certification with respect to musicians is applicable to stagehands, drivers, and equipment handlers coming to the United States in connection with such musicians’ employment, and such supporting workers may be included in the H-2B petition. In cases where the services of the musicians are needed for longer than thirty days, the prospective employer must obtain a temporary labor certification and the file a new petition.
Canadian Woodsmen
H-2B Canadian woodsmen are petitioned for by various contractors in the lumber industry. These temporary workers are employed in various capacities such as loggers, skidder operators, cooks, or mechanics. Although a petition for a Canadian woodman still requires a temporary labor certification, such petitions are filed with the District Director in Portland, Maine without the names and evidence of the qualifications of beneficiaries, and are adjudicated under the emergent procedures contained at OI 214.2(h)(2)(vi)(A). Petitions may be filed for multiple beneficiaries, but separate petitions must be submitted for separate labor certifications. The petitioner must specify a port of entry that has been designated by the district director as a control port for nonimmigrant Canadian woodsmen.
Canadian Boilermakers
The National Association of Construction Boilermaker Employers and the International Brotherhood of Boilermakers have made arrangements with the Department of Labor and the Service to obtain expedited determinations on H-2B labor certification applications and petitions for boilermakers from the Canadian boilermaker’s union when there are insufficient United States boilermakers to meet contract needs. The Manpower Optimization Stabilization and Training Fund (MOST) in Kansas City, Kansas serves as the clearinghouse for the employers and workers, and will handle all of the paperwork required for labor certification and petition approval. MOST will not be the petitioner or sign forms for the employers.
Petitions for Canadian boilermakers may be filed with the Service Center without the names and evidence of qualifications of beneficiaries. Service Center directors shall expedite adjudication of such petitions under emergent procedures at OI 214.2(h)(2)(vi)(A). A separate labor certification and petition must be filed for each employer. When the workers for an employer will enter at different ports of entry, a separate petition with a copy of the same labor certification must be filed for each port of entry.
Athletes
A petition for an H-2B athlete must be accompanied by a tendered contract and a labor certification issued by the United States Department of Labor. If issuance of the Labor certification has been delayed and the start of the playing season is imminent, the petition will be adjudicated at the local Service office (with appropriate coordination with the service center).
Professional leagues should adhere to the total number of H-2B positions granted them by the Department of Labor. Injured players and players who voluntarily terminate their employment with a league may be replaced on existing petitions provided that they return to their native countries. Such a replacement will require the filing of a new petition.
If an H-2B player is traded to another team, the player’s H-2B labor certification slot remains with the trading team and the receiving team must have an available slot to receive the player. If a team does not use all its designated H-2B labor certification slots on an initial petition, any subsequent signings to fill designated slots will require a new petition or petitions.
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