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(h) Decision Procedures.
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If the documentary requirements have been met and the petition is approvable, endorse the action block. The approval period should coincide with the period requested by the petitioner but should not exceed the validity dates indicated on the temporary labor certification from the Department of Labor. If the alien is present in the United States and requires a change of status, follow procedures described in Chapter
30.3. If the alien is present in the United States and requires an extension of stay, follow procedures described in Chapter 30.2. Notify the petitioner of the action taken using Form I-797, Notice of Action. After approval,
the file containing one copy of the petition and the supporting evidence should be forwarded to the
Harrisonburg File Storage Facility (HBG).
USCIS no longer accepts and adjudicates an H-2B petition that lacks an approved temporary labor certification from the Department of Labor or Guam Department of Labor. [See 8 CFR 214.2(h)(6)(iv)(A) and (v)(A).] Any such petition will be rejected and returned to the petitioner, together with any fee submitted with the petition. As in the case of other rejected petitions, there is no appeal from the rejection of an H-2B petition lacking an approved temporary labor certification. Appeals of the denied temporary labor certifications must be adjudicated by the Department of Labor’s appellate authority the Bureau of Alien Labor Certification Appeals (BALCA). [See 20 CFR 655.11.]
(2) Denial. [Revised by 1/26/11, AD11-09].
Prepare a notice of denial. As required in Chapter 10.7(b)(5) of this manual, the decision must include information about appeal rights and the opportunity to file a motion to reopen or reconsider. The AAO has jurisdiction over the appeal. Retain the file, in accordance with local procedures, until the appeal period expires or an appeal is received.
while the denial of a petition filed on behalf of a national of a country not listed on the H-2B Eligible Countries List for failure to establish eligibility for the U.S. interest exception in 8 CFR 214.2(h)(6)(i)(E)(2) may be appealed to the AAO, there is no judicial appeal available to challenge such a discretionary denial, as such decisions, by regulation, are, as noted above, made in the Secretary’s sole and unreviewable discretion. Id.
(3) Partial Approvals.
A partial approval can occur with petitions for multiple beneficiaries when only some of the beneficiaries included on the petition are found to be approvable and some must be denied. For example, a partial approval may result in cases where a petition is filed for a combination of beneficiaries from H-2B eligible and non-eligible countries and the petitioner is unable to provide sufficient evidence in response to a USCIS request for evidence that the beneficiaries from non-eligible countries meet the U.S. interest requirements of 8 CFR 214.2(h)(6)(i)(E)(2).
Since USCIS Systems are not capable of counting two actions for one receipt, the action on a partial approval is counted as an approval for reporting purposes. A petitioner may appeal the decision to deny classification to one or more of the beneficiaries or file a new petition in their behalf.
(i) Transmittal of Petition.
(1) Visa Applicants.
If the beneficiary requires a visa and requests consular notification, the duplicate of the approved petition (if submitted), with the supporting documents, shall be sent to the Department of State’s Kentucky Consular Center (KCC).
(2) Visa-exempt Applicants.
When the beneficiary does not require a visa, the duplicate petition (if submitted), without supporting documents, shall be forwarded to the appropriate port of entry or pre-flight inspection facility.
(j) Special Handling Situations.
The National Association of Construction Boilermaker Employers and the International Brotherhood of Boilermakers have made arrangements with the Department of Labor and USCIS to obtain expedited determinations on H-2B temporary labor certification applications and petitions for boilermakers from the Canadian boilermaker’s union when there are insufficient U.S. boilermakers to meet contract needs.
(A) Filing Procedures.
The Manpower Optimization Stabilization and Training Fund (MOST) in Kansas City, Kansas serves as the clearinghouse for the employers and workers and will submit all of the paperwork required for temporary labor certification and petition approval. MOST will not be the petitioner or sign forms for the employers. Petitions for Canadian boilermakers who are outside of the United States 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. A separate temporary 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 temporary labor certification must be filed for each port of entry.
(B) Handling of Approved Petitions.
On approval, the director shall send the petition to the designated port of entry. MOST will provide the port of entry the names and evidence of the qualifications of beneficiaries before they apply for admission. The port director shall be responsible for nonimmigrant control. When an approved petition involves replacement, MOST will provide the port with the names of beneficiaries to be replaced, the date they departed the United States, and the names and evidence of the qualifications of new beneficiaries who will apply for admission.
(2) Fish Roe Workers.
The numerical limitation in section 214(g)(1)(B) of the Act does not apply to any nonimmigrant alien issued an H-2B visa or otherwise provided H-2B status who is employed or has received an offer of employment as a fish roe processor, a fish roe technician, or a supervisor of fish roe processing. [See Public Law 108-287, Section 14006.]
(3) Workers performing labor and services in Guam and the Commonwealth of the Northern Mariana Islands (CNMI). [Added by 1/29/10, AD10-29].
The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, includes a provision exempting H-2B workers performing labor or services in Guam and the CNMI from the H-2B numerical limitation in section 214(g)(1)(B) of the Act (aka the “H-2B cap”). Upon the CNRA’s implementation on November 28, 2009, H-2B workers in Guam and the CNMI are exempt from the statutory numerical limitation for H-2B classification from November 28, 2009 to December 31, 2014. See section 6(b) of Public Law 94-241, as added by section 702 of the CNRA.
This H-2B cap exemption does not apply to any employment to be performed outside of the CNMI or Guam. As such, to qualify for this exemption, the petition must include an approved temporary labor certification for work locations in the CNMI and/or Guam only.
An H-2B worker granted H-2B status under this CNMI/Guam cap exemption who ceases to be employed in H-
2B classification solely in the CNMI and/or Guam shall be deemed subject to the H-2B cap. A subsequent petition filed for such an H-2B worker (i.e., a change of employer petition with a request for an extension of stay) requesting employment located outside of CNMI and/or Guam is subject to the H-2B cap.
(k) Adjudicative Issues.
(1) Determining the Petitioner’s Ability to Pay the Required Wage.
This issue is most commonly associated with small enterprises that do not necessarily have the assets required to pay the salary guaranteed in the petition. Such a petition may be an accommodation to a relative or friend who will seek other employment or there may be an agreement to work for lower wages. It is not necessary that complete financial data be submitted with every petition. However, if the financial condition of the petitioner calls into question whether the petitioner really intends to employ the alien as claimed, evidence of financial ability may be requested at the discretion of the adjudicating officer in order to determine whether there exists a bona fide job offer. Other factors that may be examined include, but are not limited to, the nature of the petitioner’s business, the relationship between the beneficiary and the owners/officers of the petitioning entity, and the petitioner and beneficiary’s immigration histories.
(2) Need for Workers.
As it is within USCIS scope to evaluate whether there is an actual need for the work itself and whether there is a genuine job offer, adjudications officers are advised to evaluate an H-2B petitioner’s actual need for the number of employees requested and to issue an RFE in cases where there is doubt as to the need for the number of H-2B workers requested.
(3) Substitution of Beneficiaries.
H-2B workers that have not yet been admitted to the United States may be substituted as long as the employer can demonstrate that the total number of beneficiaries will not exceed the number of beneficiaries certified in the original temporary labor certification.
(A) Substitution of beneficiaries with aliens who are outside of the United States are processed directly with the consular office at which each alien will apply for a visa or, if the alien is visa exempt, at the port of entry or pre-flight inspection location where the alien will apply for admission.
(B) Substitution of beneficiaries with aliens who are currently in the United States is processed by USCIS. The petitioner must file an amended petition at the Service Center where the original petition was filed. The amended petition must retain a period of employment within the same half of the same fiscal year as the original petition and include:
• A filing fee;
• A copy of the original petition approval notice;
• A copy of the temporary labor certification;
• A statement explaining why the substitution is necessary;
• Evidence of the qualifications of each beneficiary, if applicable;
• Evidence of the beneficiaries’ current status in the United States; and
• Evidence that the total number of beneficiaries will not exceed the number of H-2B workers authorized on the labor certification.
H-2B workers who were already admitted to the United States may not be substituted. Instead, a new petition accompanied by a newly approved labor certification must be filed.
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