Section 101(a)(15)(H): An alien may be authorized to come to the United States temporarily to perform services or labor for, or to receive training from, an employer, if petitioned for by that employer. Under this nonimmigrant category, the alien may be classified as follows: under section 101(a)(15)(H)(i)(c) of the Act as a registered nurse; under section 101(a)(15)(H)(i)(b) of the Act as an alien who is coming to perform services in a specialty occupation, services relating to a Department of Defense (DOD) cooperative research and development project or production project, or services as a fashion model who is of distinguished merit and ability; under section 101(a)(15)(H)(ii)(a) of the Act as an alien who is coming to perform agricultural labor or services of a temporary or seasonal nature; under section 101(a)(15)(H)(ii)(b) of the Act as an alien coming to perform other temporary services or labor; or under section 101(a)(15)(H)(iii) of the Act as an alien who is coming as a trainee or as a participant in a special education exchange visitor program. These classifications are called H-1C, H-1B, H-2A, H-2B, and H-3, respectively. The employer must file a petition with the Service for review of the services or training and for determination of the alien's eligibility for classification as a temporary employee or trainee, before the alien may apply for a visa or seek admission to the United States. This paragraph sets forth the standards and procedures applicable to these classifications.

• H-1B visa: Temporary workers in specialty occupations and fashion models of distinguished merit and ability.

• H-1C visa: Nurses for disadvantaged areas.

• H-2A visa: Agricultural labor or services of a temporary or seasonal nature.

• H-2B visa: Temporary worker: skilled and unskilled.

• H-3 visa:  Alien trainee or participant in a special education exchange visitor program (H-3).

H-1B nonimmigrant visa status is for foreign workers, who will be employed temporarily, in "specialty occupations" and fashion models of "distinguished merit and ability." H-1B workers do not need  to maintain a foreign residence during their period of stay in the United States, a requirement imposed on many other nonimmigrant categories.

H-1B visa requirements:

1. The job must require a B.S. degree (to qualify for specialty occupation) or have a Foreign Equivalence of a U.S. Degree;
2. The wage offered must be at or above the prevailing wage;
3. The employer must file and promise to the DOL that it will perform all the requirement specified on labor condition application;
4. The alien must have at least a B.S. degree or equivalence, in the same or similar field.

There is an annual limit on the number of H-1B aliens: The number of aliens who can be issued an H-1B visa or be provided H-1B status otherwise is 65,000 per year.  In addition, the new Free Trade Agreement (FTAs) with Chile and Singapore signed into law in September 2003 will also put more pressure on H-1B cap. The FTA with Chile allows for a limit of 1,400 H-1B visas for Chilean professionals, while the FTA with Singapore allows for a limit of 5,400 H-1B visas for Singaporean professionals.

Once approved, H-1B aliens can only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

"Specialty occupation" is defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."

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To qualify as a specialty occupation, one or more of the following criteria must be met:

• A baccalaureate or higher degree or its equivalent is normally the minimum entry requirement for the position;
• The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree;
• The employer normally requires a degree or its equivalent for the position; or
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

An H-1B visa permits an individual from a foreign nation to be employed legally in the United States for an initial period of three (3) years, up to a maximum of six (6) years (Certain aliens working on Defense Department projects may remain in H-1B status for 10 years).   Under certain conditions, one my stay on the H-1B status beyond the six (6) years. If you have been here in the U.S. for many years, you may wish to take a look at another  memo from Michael Aytes, USCIS Associate Director, Domestic Operations, issued on 12/5/2006 regarding periods of admission for H-4s or L-2s and applicants for H-1B status beyond the six-year maximum, as well as the maximum period of admission for H-1Bs who have been out of the U.S. for more than 1 year but were not in H-1B status for a full 6 years.

An H-1B alien can intend to immigrate permanently to the U.S, i.e,  An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from the INS to return to the U.S.

American Competitiveness in the 21st Century Act of 2000 allows the new employer to commence employment of the foreign national upon filing of the new petition rather than upon its approval, as had been the case under prior law:

• For portability from a cap-exempt employer to a cap-subject employer, click here.
• INS issued a guidance in regarding the provisions related to H-1B of AC21 Act.
• An H-1B visa can be used by a nurse provided the position meets the H-1B regulation requirements.
• 4/3/07. The USCIS has announced that the H-1B cap for Fiscal Year 2008 was reached on the first day that filing was permitted, April 2, 2007.
• Aytes Memo Revises Adjudicator's Field Manual Regarding License Requirements for Some H-1Bs.
• DOL ALJ Addresses LCA Wage, Fee Payment, Public Access File Issues.
• A DOL Adminstrative Law Judge addresses when it is appropriate to convert per diem payments to wage payments for purposes of complying with the wage requirements for H-1B labor condition applications.
• A DOL Adminstrative Law Judge addresses several H-1B LCA issues, including termination of employment, and accusations of understatement of duties and of retaliation in the form of refusing to pursue an I-140. Administrator, Wage & Hour Div. v. Clean Air Technologies International Inc., 2006-LCA-00009 (6/18/07).

USCIS' Standard Operating Procedures (SOPs) for H-1B Adjudication »

On 12/26/2006, from Michael Aytes, Associate Director issued a memo, entitled Reauthorization of H-1C Program under the Nursing Relief for Disadvantaged Areas Act of 2005

On Friday, November 12, 1999, the President signed into law H.R. 441, the Nursing Relief for Disadvantaged Areas Act (P.L. 106-95). This law creates a new nonimmigrant category for nurses who will work in areas designated as “Health Professional Shortage Areas by the Department of Health and Human Services.“ The law allows 500 new H-1C visas annually for the next four fiscal years. Similar to the H-1A program, facilities would have to file a labor attestation with the Department of Labor, which could charge a fee of $250 per application. The law also provides for specific acceptance of CGFNS certifications for all foreign nurses for Section 212(a)(5)(C). Other provisions include a national interest waiver for H-1B physicians working in shortage areas and L-1 status for international accounting and consulting firms.

Filing form ETA-9081

Petition for registered nurse (H-1C).--
 
(i) General. 
 
(A) For purposes of H-1C classification, the term "registered nurse" means a person who is or will be authorized by a State Board of Nursing to engage in registered nurse practice in a state or U.S. territory or possession, and who is or will be practicing at a facility which provides health care services. (Revised 6/11/01; 66 FR 31107) 
(B) A United States employer which provides health care services is referred to as a facility. A facility may file an H-1C petition for an alien nurse to perform the services of a registered nurse, if the facility meets the eligibility standards of 20 CFR 655.1111 and the other requirements of the Department of Labor's regulations in 20 CFR part 655, subpart L. (Revised 6/11/01; 66 FR 31107) 
(C) The position must involve nursing practice and require licensure or other authorization to practice as a registered nurse from the State Board of Nursing in the state of intended employment. 
(D) A petition or application for change of status for an H-1C nurse may be filed and adjudicated only at the Vermont Service Center. (Revised 6/11/01; 66 FR 31107) 
 
(ii) [Reserved] (Removed and reserved 6/11/01; 66 FR 31107) 
 
(iii) Beneficiary requirements. An H-1C petition for a nurse shall be accompanied by evidence that the nurse: (Amended 6/11/01; 66 FR 31107) 
(A) Has obtained a full and unrestricted license to practice nursing in the country where the alien obtained nursing education, or has received nursing education in the United States; (Amended 6/11/01; 66 FR 31107) 
(B) Has passed the examination given by the Commission on Graduates of Foreign Nursing Schools (CGFNS), or has obtained a full and unrestricted (permanent) license to practice as a registered nurse in the state of intended employment, or has obtained a full and unrestricted (permanent) license in any state or territory of the United States and received temporary authorization to practice as a registered nurse in the state of intended employment; and     (Revised 6/11/01; 66 FR 31107) 
(C) Is fully qualified and eligible under the laws (including such temporary or interim licensing requirements which authorize the nurse to be employed) governing the place of intended employment to practice as a registered nurse immediately upon admission to the United States, and is authorized under such laws to be employed by the employer. For purposes of this paragraph, the temporary or interim licensing may be obtained immediately after the alien enters the United States. (Revised 10/7/94; 59 FR 51101) 
 
(iv) Petitioner requirements. The petitioning facility shall submit the following with an H-1C petition: (Revised 6/11/01; 66 FR 31107)
(A) A current copy of the DOL's notice of acceptance of the filing of its attestation on Form ETA 9081; 
(B) A statement describing any limitations which the laws of the state or jurisdiction of intended employment place on the alien's services; and 
(C) Evidence that the alien(s) named on the petition meets the definition of a registered nurse as defined at 8 CFR 214.2(h)(3)(i)(A), and satisfies the requirements contained in section 212(m)(1) of the Act.

(v) Licensure requirements.
(A) A nurse who is granted H-1C classification based on passage of the CGFNS examination must, upon admission to the United States, be able to obtain temporary licensure or other temporary authorization to practice as a registered nurse from the State Board of Nursing in the state of intended employment. (Revised 6/11/01; 66 FR 31107) 
(B) An alien who was admitted as an H-1C nonimmigrant on the basis of a temporary license or authorization to practice as a registered nurse must comply with the licensing requirements for registered nurses in the state of intended employment. An alien admitted as an H-1C nonimmigrant is required to obtain a full and unrestricted license if required by the state of intended employment. The Service must be notified pursuant to ?214.2(h)(11) when an H-1C nurse is no longer licensed as a registered nurse in the state of intended employment. (Revised 6/11/01; 66 FR 31107) (Revised 10/7/94; 59 FR 51101) 
(C) A nurse shall automatically lose his or her eligibility for H-1C classification if he or she is no longer performing the duties of a registered professional nurse. Such a nurse is not authorized to remain in employment unless he or she otherwise receives authorization from the Service. (Amended 6/11/01; 66 FR 31107) (Revised 10/7/94; 59 FR 51101) 
(D) Removed (6/11/01; 66 FR 31107) 
 
(vi) Other requirements. 
 
(A) If the Secretary of Labor notifies the Service that a facility which employs H-1C nonimmigrant nurses has failed to meet a condition in its attestation, or that there was a misrepresentation of a material fact in the attestation, the Service shall not approve petitions for H-1C nonimmigrant nurses to be employed by the facility for a period of at least 1 year from the date of receipt of such notice. The Secretary of Labor shall make a recommendation with respect to the length of debarment. If the Secretary of Labor recommends a longer period of debarment, the Service will give considerable weight to that recommendation. (Revised 6/11/01; 66 FR 31107) 
(B) If the facility's attestation expires, or is suspended or invalidated by DOL, the Service will not suspend or revoke the facility's approved petitions for nurses, if the facility has agreed to comply with the terms of the attestation under which the nurses were admitted or subsequent attestations accepted by DOL for the duration of the nurse's authorized stay.  

Annual number limit: Aliens classified as H-1C nonimmigrants may not exceed 500 in a fiscal year.

(i) Filing a petition --
(A) General. An H-2A petition must be filed on Form I - 129. The petition must be filed with a single valid temporary agricultural labor certification. However, if a certification is denied, domestic labor subsequently fails to appear at the worksite, and the Department of Labor denies an appeal under section 216(e)(2) of the Act, the written denial of appeal shall be considered a certification for this purpose if filed with evidence which establishes that qualified domestic labor is unavailable. An H -2A petition may be filed by either the employer listed on the certification, the employer's agent, or the association of United States agricultural producers named as a joint employer on the certification. 
(B) Multiple beneficiaries. The total number of beneficiaries of a petition or series of petitions based on the same certification may not exceed the number of workers indicated on that document. A single petition can include more than one beneficiary if the total number does not exceed the number of positions indicated on the relating certification, and all beneficiaries will obtain a visa at the same consulate or are not required to have a visa and will apply for admission at the same port of entry. 
(C) Unnamed beneficiaries. The sole beneficiary of an H - 2A petition must be named in the petition. In a petition for multiple beneficiaries, each must be named unless he or she is not named in the certification and is outside the United States. Unnamed beneficiaries must be shown on the petition by total number. 
(D) Evidence. An H - 2A petitioner must show that the proposed employment qualifies as a basis for H - 2A status, and that any named beneficiary qualifies for that employment. A petition will be automatically denied if filed without the certification evidence required in paragraph (h)(5)(i)(A) of this section and, for each named beneficiary, the initial evidence required in paragraph (h)(5)(v) of this section. 
(E) Special filing requirements. Where a certification shows joint employers, a petition must be filed with an attachment showing that each employer has agreed to the conditions of H - 2A eligibility. A petition filed by an agent must be filed with an attachment in which the employer has authorized the agent to act on its behalf, has assumed full responsibility for all representations made by the agent on its behalf, and has agreed to the conditions of H - 2A eligibility. 
 
(ii) Effect of the labor certification process. The temporary agricultural labor certification process determines whether employment is as an agricultural worker, whether it is open to U.S. workers, if qualified U.S. workers are available, the adverse impact of employment of a qualified alien, and whether employment conditions, including housing, meet applicable requirements. In petition proceedings a petitioner must establish that the employment and beneficiary meet the requirements of paragraph (h)(5) of this section. In a petition filed with a certification denial, the petitioner must also overcome the Department of Labor's findings regarding the availability of qualified domestic labor.

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(iii) Ability and intent to meet a job offer -- 
(A) Eligibility requirements. An H - 2A petitioner must establish that each beneficiary will be employed in accordance with the terms and conditions of the certification, which includes that the principal duties to be performed are those on the certification, with other duties minor and incidental. 
(B) Intent and prior compliance. Requisite intent cannot be established for two years after an employer or joint employer, or a parent, subsidiary or affiliate thereof, is found to have violated section 274(a) of the Act or to have employed an H - 2A worker in a position other than that described in the relating petition. 
(C) Initial evidence. Representations required for the purpose of labor certification are initial evidence of intent. 
 
(iv) Temporary and seasonal employment -- 
(A) Eligibility requirements. An H - 2A petitioner must establish that the employment proposed in the certification is of a temporary or seasonal nature. Employment is of a seasonal nature where it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. Employment is of a temporary nature where the employer's need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer than one year. 
(B) Effect of Department of Labor findings. In temporary agricultural labor certification proceedings the Department of Labor separately tests whether employment qualifies as temporary or seasonal. Its findings that employment qualifies is normally sufficient for the purpose of an H - 2A petition. However, notwithstanding that finding, employment will be found not to be temporary or seasonal where an application for permanent labor certification has been filed for the same alien, or for another alien to be employed in the same position, by the same employer or by its parent, subsidiary or affiliate. This can only be overcome by the petitioner's demonstration that there will be at least a six month interruption of employment in the United States after H - 2A status ends. Also, eligibility will not be found, notwithstanding the issuance of a temporary agricultural labor certification, where there is substantial evidence that the employment is not temporary or seasonal.

(v) The beneficiary's qualifications --
(A) Eligibility requirements. An H - 2A petitioner must establish that any named beneficiary met the stated minimum requirements and was fully able to perform the stated duties when the application for certification was filed. It must be established at time of application for an H -2A visa, or for admission if a visa is not required, that any unnamed beneficiary either met these requirements when the certification was applied for or passed any certified aptitude test at any time prior to visa issuance, or prior to admission if a visa is not required. 
(B) Initial evidence of employment/job training. A petition must be filed with evidence that at the required time the beneficiary met the certification's minimum employment and job training requirements. Initial evidence must be in the form of the past employer's detailed statement or actual employment documents, such as company payroll or tax records. Alternately, a petitioner must show that such evidence cannot be obtained, and submit affidavits from people who worked with the beneficiary that demonstrate the claimed employment. 
(C) Initial evidence of education and other training. A petition must be filed with evidence that at the required time each beneficiary met the certification's minimum post-secondary education and other formal training requirements. Initial evidence must be in the form of documents, issued by the relevant institution or organization, that show periods of attendance, majors and degrees or certificates accorded. 

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(vi) Petition agreements -- 
(A) Consent and liabilities. In filing an H - 2A petition, a petitioner and each employer consents to allow access to the site where the labor is being performed for the purpose of determining compliance with H - 2A requirements. The petitioner further agrees to notify the Service in the manner specified within twenty-four hours if an H - 2A worker absconds or if the authorized employment ends more than five days before the relating certification document expires, and to pay liquidated damages of ten dollars for each instance where it cannot demonstrate compliance with this notification requirement. The petitioner also agrees to pay liquidated damages of two hundred dollars for each instance where it cannot demonstrate that its H -2A worker either departed the United States or obtained authorized status based on another petition during the period of admission or within five days of early termination, whichever comes first. 
(B) Process. Where evidence indicates noncompliance under paragraph (h)(5)(vi)(A) of this section, the petitioner shall be given written notice and given ten days to reply. If it does not demonstrate compliance, it shall be given written notice of the assessment of liquidated damages. 
(C) Failure to pay liquidated damages. If liquidated damages are not paid within ten days of assessment, an H - 2A petition may not be processed for that petitioner or any joint employer shown on the petition until such damages are paid. 
(vii) Validity. An approved H - 2A petition is valid through the expiration of the relating certification for the purpose of allowing a beneficiary to seek issuance of an H - 2A nonimmigrant visa, admission or an extension of stay for the purpose of engaging in the specific certified employment.

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(viii) Admission -- 
(A) Effect of violations of status. An alien may not be accorded H - 2A status who the Service finds to have violated the conditions of H - 2A status within the prior five years. H - 2A status is violated by remaining beyond the specific period of authorized stay or by engaging in unauthorized employment. 
(B) Period of admission. Notwithstanding paragraph (h)(13) of this section, and except as provided in paragraph (h)(5)(vii)(C) of this section, an alien admissible as an H - 2A shall be admitted for the period of the approved petition plus a period of up to one week before the beginning of the approved period for the purpose of travel to the worksite, and a period following the expiration of the H - 2A petition equal to the validity period of the petition, but not more than ten days, for the purpose of departure or extension based on a subsequent offer of employment. However, this extended admission period does not affect the beneficiary's employment authorization. Such authorization only applies to the specific employment indicated in the relating petition, for the specific period of time indicated.  (C) Limits on an individual's stay. An alien's stay as an H -2A is limited by the term of an approved petition. An alien may remain longer to engage in other qualifying temporary agricultural employment by obtaining an extension of stay. However, an individual who has held H - 2A status for a total of three years may not again be granted H - 2A status, or other nonimmigrant status based on agricultural activities, until such time as he or she remains outside the United States for an uninterrupted period of six months. An absence can interrupt the accumulation of time spent as an H - 2A. If the accumulated stay is eighteen months or less, an absence is interruptive if it lasts for at least three months. If more than eighteen months stay has been accumulated, an absence is interruptive if it lasts for at least one-sixth the accumulated stay. Eligibility under this subparagraph will be determined in admission, change of status or extension proceedings. An alien found eligible for a shorter period of H - 2A status than that indicated by the petition due to the application of this subparagraph shall only be admitted for that abbreviated period. 
 
(ix) Substitution of beneficiaries after admission. An H - 2A petition may be filed to replace H - 2A workers whose employment was terminated early. The petition must be filed with a copy of the certification document, a copy of the approval notice covering the workers for which replacements are sought, and other evidence required by paragraph (h)(5)(i)(D) of this section. It must also be filed with a statement giving each terminated worker's name, date and country of birth, termination date, and evidence the worker has departed the United States. A petition for a replacement may not be approved where the requirements of paragraph (h)(5)(vi) of this section have not been met. A petition for replacements does not constitute the notice that an H - 2A worker has absconded or has ended authorized employment more than five days before the relating certification expires. 
 
(x) Extensions without labor certification. A single H-2A petition may be extended without a certification if it is based on approval of the alien's application for extension of stay for a continuation of the employment authorized by the approval of a previous H-2A petition filed with a certification (but not a certification extension granted under 20 CFR 655.106(c)(3)), and the proposed continuation of employment will last no longer than the previously authorized employment and also will not last longer than two weeks.

Click here to see DOL regulation.

11/6/07, 11/14/07 Training and Employment Guidance Letters (TEGL) clarify procedures with regard to filing; recruitment, including verification of employment eligibility; and housing.

On 2/5/08 the DOL's Office of Foreign Labor Certification posted Round One of FAQs on TEGL 11-07, Change 1, which clarified the processing of H-2A labor certification applications.

The Department of Labor Region V office has mandated temporary cases be processed within 30-days of Ohio ODJFS FLC receipt. Compliance with such measures requires us to change our processing procedures. Please read the new procedures carefully.

Employers and/or their third parties are encouraged to participate in Ohio FLC’s e-mail program because it provides the speediest and most assured way of corresponding.  We are able to e-mail all correspondence, with the exception of deficiency and resume letters. Please contact our unit at Foreign Labor@odjfs.state.oh.us. Our correspondence is created in Microsoft Word. If you don’t have Word, simply down-load the free Microsoft Reader at http://office.mircrosoft.com/downloads/9798/wd97vwr32.aspx .

1. The employer will now be responsible for both ad placement and job order placement. Our correspondence will provide the recommended publication to be used as well as the ODJFS local office nearest the worksite.
2. The employer must provide Ohio FLC with the job order number and dates of ad placement. This can be done by e-mail or phone call. Faxes and mail are not recommended as our receipt of information cannot be confirmed.
3. The "start date" for recruitment will begin the day of notification of the ad date information and the job order number. Both must be provided at the same time. On the 10^th day, Ohio FLC will forward "Close of Recruitment" correspondence to the employer or the employer’s third party. The information forwarded to you will not only include the number of referrals, but also the names of the US workers whose resumes were forwarded to the employer from our office. Although FLC will obtain a list of the referrals made by the One Stop, it is the employer’s responsibility to account for those referrals and to supply the resumes with the recruitment summary.
4. The employer has to submit a recruitment summary by mail. This information cannot be e-mailed or faxed to us. The employer MUST contact all qualified applicants. The results of the interviews must be submitted with the recruitment summary.
5. It is requested that the application show the employer’s Unemployment Compensation number, on line 4 of the ETA 750A.

VERY IMPORTANT: The processing time for all applications will not exceed 30 days from the priority date. It is vital that the employer/attorney respond promptly to any requests for information or feedback as the application will be transmitted to the Chicago Regional Office no later than the 30-day date, even if all required documentation has not yet been submitted to the state agency.

Petition for alien to perform temporary nonagricultural services or labor (H-2B)-- 
 
(i) General. An H-2B nonagricultural temporary worker is 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. 
 
(ii) Temporary services or labor.-- 
(A) Definition. 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.
(B) Nature of petitioner's need. As a general rule, the period of the petitioner's need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year. The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need: 
 
(1) 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. 
(2) Seasonal need. The petitioner must establish that the services or labor is traditionally tied to a season of the year by an 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. 
(3) 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.
(4) 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.

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(iii) Procedures. 
 
(A) Prior to filing a petition with the director to classify an alien as an H-2B worker, the petitioner shall apply for a temporary labor certification with the Secretary of Labor for all areas of the United States, except the Territory of Guam. In the Territory of Guam, the petitioning employer shall apply for a temporary labor certification with the Governor of Guam. The labor certification shall be advice to the director on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers. 
(B) An H-2B petitioner shall be a United States employer, a United States agent, or a foreign employer through a United States agent. For purposes of paragraph (h) of this section, a foreign employer is any employer who is not amendable to service of process in the United States. A foreign employer may not directly petition for an H-2B nonimmigrant but must use the services of a Unites States agent to file a petition for an H-2B nonimmigrant. A United States agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept service of process in the Unites States in proceedings under section 274A of the act, on behalf of the employer. The petitiononing employer shall consider available United States workers for the temporary services or labor, and shall offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in the United States, (Revised 4/16/97; 62 FR 18508).  
(C) The petitioner may not file an H-2B petition unless the United States petitioner has applied for a labor certification with the Secretary of Labor or the Governor of Guam within the time limits prescribed or accepted by each, and has obtained a labor certification determination as required by paragraph (h)(6)(iv) or (h)(6)(v) of this section. 
(D) The Secretary of Labor and the Governor of Guam shall separately establish procedures for administering the temporary labor certification program under his or her jurisdiction. 
(E) After obtaining a determination from the Secretary of Labor or the Governor of Guam, as appropriate, the petitioner shall file a petition accompanied by the labor certification determination and supporting documents, with the director having jurisdiction in the area of intended employment.

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(iv) Labor certifications, except Guam--

(A) Secretary of Labor's determination. An H-2B petition for temporary employment in the United States, except for temporary employment on Guam, shall be accompanied by a labor certification determination that is either: 
 
(1) A certification from the Secretary of Labor stating that qualified workers in the United States are not available and that the alien's employment will not adversely affect wages and working conditions of similarly employed United States workers; or 
(2) A notice detailing the reasons why such certification cannot be made. Such notice shall address the availability of U.S. workers in the occupation and the prevailing wages and working conditions of U.S. workers in the occupation. 
(B) Validity of the labor certification. The Secretary of Labor may issue a temporary labor certification for a period of up to one year. 
(C) U.S. Virgin Islands. Temporary labor certifications filed under section 101(a)(15)(H)(ii)(b) of the Act for employment in the United States Virgin Islands may be approved only for entertainers and athletes and only for periods not to exceed 45 days. 
(D) Attachment to petition. If the petitioner receives a notice from the Secretary of Labor that certification cannot be made, a petition containing countervailing evidence may be filed with the director. 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. 
(E) Countervailing evidence. The countervailing evidence presented by the petitioner shall be in writing and shall address availability of U.S. workers, the prevailing wage rate for the occupation in the United States, and each of the reasons why the Secretary of Labor could not grant a labor certification. The petitioner may also submit other appropriate information in support of the petition. The director, at his or her discretion, may require additional supporting evidence. 
 
(v) Labor certification for Guam-- 
 
(A) Governor of Guam's determination. An H-2B petition for temporary employment on Guam shall be accompanied by a labor certification determination that is either: 
 
(1) A certification from the Governor of Guam stating that qualified workers in the United States are not available to perform the required services, and that the alien's employment will not adversely affect the wages and working conditions of United States resident workers who are similarly employed on Guam; or

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(A) notice detailing the reasons why such certification cannot be made. Such notice shall address the availability of U.S. workers in the occupation and/or the prevailing wages and working conditions of U.S. workers in the occupation. 
(B) Validity of labor certification. The Governor of Guam may issue a temporary labor certification for a period up to one year. 
(C) Attachments to petition. If the employer receives a notice from the Governor of Guam that certification cannot be made, a petition containing countervailing evidence may be filed with the director. 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.

(D) Countervailing evidence. The countervailing evidence presented by the petitioner shall be in writing and shall address availability of United States workers, the prevailing wage rate, and each of the reasons why the Governor of Guam could not make the required certification. The petitioner may also provide any other appropriate information in support of the petition. The director, at his or her discretion, may require additional supporting evidence. 
(E) Criteria for Guam labor certifications. The Governor of Guam shall, in consultation with the Service, establish systematic methods for determining the prevailing wage rates and working conditions for individual occupations on Guam and for making determinations as to availability of qualified United States residents. 
 
(1) Prevailing wage and working conditions. The system to determine wages and working conditions must provide for consideration of wage rates and employment conditions for occupations in both the private and public sectors, in Guam and/or in the United States (as defined in section 101(a)(38) of the Act), and may not consider wages and working conditions outside of the United States. If the system includes utilization of advisory opinions and consultations, the opinions must be provided by officially sanctioned groups which reflect a balance of the interests of the private and public sectors, government, unions and management. 
 
(2) Availability of United States workers. The system for determining availability of qualified United States workers must require the prospective employer to: 
 
(i) Advertise the availability of the position for a minimum of three consecutive days in the newspaper with the largest daily circulation on Guam; 
 
(ii) Place a job offer with an appropriate agency of the Territorial Government which operates as a job referral service at least 30 days in advance of the need for the services to commence, except that for applications from the armed forces of the United States and those in the entertainment industry, the 30-day period may be reduced by the Governor to 10 days; 
 
(iii) Conduct appropriate recruitment in other areas of the United States and of its territories if sufficient qualified United States construction workers are not available on Guam to fill a job. The Governor of Guam may require a job order to be placed more than 30 days in advance of need to accommodate such recruitment; 
 
(iv) Report to the appropriate agency the names of all United States resident workers who applied for the position, indicating those hired and the job-related reasons for not hiring; 
 
(v) Offer all special considerations, such as housing and transportation expenses, to all United States resident workers who applied for the position, indicating those hired and the job-related reasons for not hiring; 
 
(vi) Meet the prevailing wage rates and working conditions determined under the wages and working conditions system by the Governor; and

(vii) Agree to meet all Federal and Territorial requirements relating to employment, such as nondiscrimination, occupational safety, and minimum wage requirements. 

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(F) Approval and publication of employment systems on Guam-- 
 
(1) Systems. The Commissioner of Immigration and Naturalization must approve the system to determine prevailing wages and working conditions and the system to determine availability of United States resident workers and any future modifications of the systems prior to implementation. If the Commissioner, in consultation with the Secretary of Labor, finds that the systems or modified systems meet the requirements of this section, the Commissioner shall publish them as a notice in the Federal Register and the Governor shall publish them as a public record in Guam. 
 
(2) Approval of construction wage rates. The Commissioner must approve specific wage data and rates used for construction occupations on Guam prior to implementation of new rates. The Governor shall submit new wage survey data and proposed rates to the Commissioner for approval at least eight weeks before authority to use existing rates expires. Surveys shall be conducted at least every two years, unless the Commissioner prescribes a lesser period. 
 
(G) Reporting. The Governor shall provide the Commissioner statistical data on temporary labor certification workload and determinations. This information shall be submitted quarterly no later than 30 days after the quarter ends. 
 
(H) Invalidation of temporary labor certification issued by the Governor of Guam-- 
 
(1) General. A temporary labor certification issued by the Governor of Guam may be invalidated by a director if it is determined by the director or a court of law that the certification request involved fraud or willful misrepresentation. A temporary labor certification may also be invalidated if the director determines that the certification involved gross error. 
 
(2) Notice of intent to invalidate. If the director intends to invalidate a temporary labor certification, a notice of intent shall be served upon the employer, detailing the reasons for the intended invalidation. The employer shall have 30 days in which to file a written response in rebuttal to the notice of intent. The director shall consider all evidence submitted upon rebuttal in reaching a decision.  
 
(3) Appeal of invalidation. An employer may appeal the invalidation of a temporary labor certification in accordance with Part 103 of this chapter. 
 
(vi) Evidence for H-2B petitions. An H-2B petition shall be accompanied by: 
 
(A) Labor certification or notice. A temporary labor certification or a notice that certification cannot be made, issued by the Secretary of Labor or the Governor of Guam, as appropriate; 
 
(B) Countervailing evidence. Evidence to rebut the Secretary of Labor's or the Governor of Guam's notice that certification cannot be made, if appropriate;

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(C) Alien's qualifications. Documentation that the alien qualifies for the job offer as specified in the application for labor certification, except in petitions where the labor certification application requires no education, training, experience, or special requirements of the beneficiary; and 
 
(D) Statement of need. A statement describing in detail the temporary situation or conditions which make it necessary to bring the alien to the United States and whether the need is a one-time occurrence, seasonal, peakload, or intermittent. If the need is seasonal, peakload, or intermittent, the statement shall indicate whether the situation or conditions are expected to be recurrent. 
 
(E) Liability for transportation costs. The employer 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 pursuant to section 214(c)(5) of the Act. If the beneficiary voluntarily terminates his or her employment prior to the expiration of the validity of the petition, the alien has not been dismissed. If the beneficiary believes that the employer has not complied with this provision, the beneficiary shall advise the Service Center which adjudicated the petition in writing. The complaint will be retained in the file relating to the petition. Within the context of this paragraph, the term "abroad" means the alien's last place of foreign residence. This provision applies to any employer whose offer of employment became the basis for the alien obtaining or continuing H-2B status. 
 
(vii) Traded professional H-2B athletes. In the case of a professional H-2B athlete who is traded from one organization or another organization, employment authorization for the player will automatically continue for a period of 30 days after the player's acquisition by the new organization, within which time the new organization is expected to file a new form I -129 for H-2B nonimmigrant classification. If a new Form I-129 is not filed within 30 days, employment authorization will be cease. If a new form I -129 is filed within 30 days, the professional athlete shall be deemed to be in valid H-2B status, and employment shall continue to be authorized, until the petition is adjudicated. If the new petition is denied, employment authorization will cease. ( Added 4/16/97; 62 FR 18508) 

Tips for filing H-2B.

Annual number limit: Aliens classified as H-2B nonimmigrants may not exceed 66,000.

In an announcement dated 3/23/07 and released 3/26/07, USCIS states that, as of 3/16/07, it has received a sufficient number of H-2B petitions to reach the cap for the second half of fiscal year 2007. Petitions received after 3/16 will be rejected.

see DOL Guidance on H-2B Processing »

see the announcement »

72 FR 38621, 7/13/2007»

TEGL 21-06 Chang 1»

(i) Alien trainee. The H-3 trainee is a nonimmigrant who seeks to enter the United States at the invitation of an organization or individual for the purpose of receiving training in any field of endeavor, such as agriculture, commerce, communications, finance, government, transportation, or the professions, as well as training in a purely industrial establishment. This category shall not apply to physicians, who are statutorily ineligible to use H-3 classification in order to receive any type of graduate medical education or training. 
 
(A) Externs. A hospital approved by the American Medical Association or the American Osteopathic Association for either an internship or residency program may petition to classify as an H-3 trainee a medical student attending a medical school abroad, if the alien will engage in employment as an extern during his/her medical school vacation. 
 
(B) Nurses. A petitioner may seek H-3 classification for a nurse who is not H-1 if it can be established that there is a genuine need for the nurse to receive a brief period of training that is unavailable in the alien's native country and such training is designed to benefit the nurse and the overseas employer upon the nurse's return to the country of origin, if: 
 
(1) The beneficiary has obtained a full and unrestricted license to practice professional nursing in the country where the beneficiary obtained a nursing education, or such education was obtained in the United States or Canada; and 
 
(2) The petitioner provides a statement certifying that the beneficiary is fully qualified under the laws governing the place where the training will be received to engage in such training, and that under those laws the petitioner is authorized to give the beneficiary the desired training.

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(ii) Evidence required for petition involving alien trainee--(A) Conditions. The petitioner is required to demonstrate that: 
 
(1) The proposed training is not available in the alien's own country; 
 
(2) The beneficiary will not be placed in a position which is in the normal operation of the business and in which citizens and resident workers are regularly employed; 
 
(3) The beneficiary will not engage in productive employment unless such employment is incidental and necessary to the training; and 
 
(4) The training will benefit the beneficiary in pursuing a career outside the United States. 
 
(B) Description of training program. Each petition for a trainee must include a statement which: 
 
(1) Describes the type of training and supervision to be given, and the structure of the training program; 
 
(2) Sets forth the proportion of time that will be devoted to productive employment; 
 
(3) Shows the number of hours that will be spent, respectively, in classroom instruction and in on-the-job training; 
 
(4) Describes the career abroad for which the training will prepare the alien; 
 
(5) Indicates the reasons why such training cannot be obtained in the alien's country and why it is necessary for the alien to be trained in the United States; and 
 
(6) Indicates the source of any remuneration received by the trainee and any benefit which will accrue to the petitioner for providing the training. 

(iii) Restrictions on training program for alien trainee. A training program may not be approved which: 
 
(A) Deals in generalities with no fixed schedule, objectives, or means of evaluation; 
 
(B) Is incompatible with the nature of the petitioner's business or enterprise; 
 
(C) Is on behalf of a beneficiary who already possesses substantial training and expertise in the proposed field of training; 
 
(D) Is in a field in which it is unlikely that the knowledge or skill will be used outside the United States; 
 
(E) Will result in productive employment beyond that which is incidental and necessary to the training; 
 
(F) Is designed to recruit and train aliens for the ultimate staffing of domestic operations in the United States; 
 
(G) Does not establish that the petitioner has the physical plant and sufficiently trained manpower to provide the training specified; or 
 
(H) Is designed to extend the total allowable period of practical training previously authorized a nonimmigrant student. 
 
(iv) Petition for participant in a special education exchange visitor program. 
 
(A) General requirements. 
 
(1) The H-3 participant in a special education training program must be coming to the United States to participate in a structured program which provides for practical training and experience in the education of children with physical, mental, or emotional disabilities. 
 
(2) The petition must be filed by a facility which has professionally trained staff and a structured program for providing education to children with disabilities, and for providing training and hands-on experience to participants in the special education exchange visitor program. 
 
(3) The requirements in this section for alien trainees shall not apply to petitions for participants in a special education exchange visitor program. 
 
(B) Evidence. An H-3 petition for a participant in a special education exchange visitor program shall be accompanied by: 
 
(1) A description of the training program and the facility's professional staff and details of the alien's participation in the training program (any custodial care of children must be incidental to the training), and 
 
(2) Evidence that the alien participant is nearing completion of a baccalaureate or higher degree in special education, or already holds such a degree, or has extensive prior training and experience in teaching children with physical, mental, or emotional disabilities.