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(a) General.

The H-2B nonimmigrant classification applies to an alien
        a) seeking to perform temporary non- agricultural labor or services
                i) in the United States.

This classification does not apply to graduates of medical schools
        a) coming to the United States
                i) to perform services
                        (a) as members of the medical profession.

(b) Definitions.

Temporary Services or Labor.

The term ��temporary services�� is defined as services
        a) where the petitioner��s need
                i) for the duties to be performed,
                ii) rather than the job itself,

            is temporary.

It is
        a) the nature of the employer��s need,
        b) not the nature of the duties,
                i) that is controlling.

See Matter of Artee Corporation, 18 I&N Dec. 366 (Comm. 1982) and Matter of Golden Dragon Chinese Restaurant, 19 I&N Dec. 238 (Comm. 1984) and Matter of General Dynamics Corp., 13 I&N Dec. 23 (Reg. Comm 1968).

The nature of the employer��s temporary need
        a) for H-2B employment

1) must be seasonal, peakload, intermittent, or a one-time occurrence
        a) as defined in the regulations at 8 CFR 214.2(h)(6)(ii).

Employment is of a temporary nature

1) when the employer needs a worker
        a) for a limited period of time.

The employer must establish that
        a) the need
                i) for the employee

            will end
                i) in the near, definable future.

Generally, that period of time will be limited to one year or less,

1) but in the case of
        a) a one-time occurrence,

        the period of employment could last
                i) longer than one year and
                ii) up to three years. [See 8 CFR 214.2(h)(6)(ii)(B).]

One-Time Occurrence.

The petitioner must establish
        a) that the employer:
                i) Has not employed workers
                        (a) to perform the services or labor
                                (i) in the past and
                
                   that it will not need workers
                        (a) to perform the services or labor
                                (i) in the future, or
                ii) Has an employment situation
                        (a) that is otherwise permanent,

                   but a temporary event
                        (a) of short duration

                          has created the need
                                (i) for a temporary worker.

EXAMPLE:

A construction company
        a) is refurbishing a church and
        b) needs to bring in foreign stained glass experts,
                i) on a one-time basis,
                ii) to complete the project.

The project is estimated to last two years.

Seasonal Need.

The petitioner must establish that
        a) the services or labor is:
                i) Traditionally tied to a season of the year
                        (a) by an event or pattern; and
                ii) Of a recurring nature.


The petitioner shall specify the period(s) of time
        a) during each year
        b) in which it does not need the services or labor.

The employment is not seasonal

1) if the period
        i) during which the services or labor is not needed

    is
        i) unpredictable or
        ii) subject to change or

   is considered a vacation period
        i) for the petition��s permanent employees.

EXAMPLES:

• Dining staff at Cape Cod resorts
        a) for the summer season
• Ski instructors for ski resorts
        a) in the Rocky Mountains
• Summer lifeguards
        a) in the coastal regions

Peakload Need.

The petitioner must establish that:
        a) The employer regularly employs permanent workers
                i) to perform the services or labor
                        (a) at the place of employment;        
        b) The employer needs to supplement its permanent staff
                i) at the place of employment
                ii) on a temporary basis
                        (a) due to a seasonal or short-term demand; and
        c) The temporary additions
                i) to staff

            will not become part
                i) of the petitioner��s regular operation.

EXAMPLE:

A toy manufacturing company makes a product
        a) that has suddenly surpassed all sales predictions and expectations.

It may be able to demonstrate
        a) that it has a peakload need
                i) for assembly-line workers
                ii0 to meet its unprecedented production demands for the Christmas season.

Intermittent Need.

The petitioner must establish that
        a) it
                i) has not employed permanent or full-time workers
                        (a) to perform the services or labor,
                ii) but occasionally or intermittently needs temporary workers
                        (a) to perform services or labor for short periods.

EXAMPLE:

A company
        a) that specializes in sports jerseys

1) has a need for apparel workers
2) when recurrent surges
        a) in production

   occur
        a) around major sporting events
                i) (such as the Superbowl).


jer��sey  (jûr��zē)
n. pl. jer��seys
1. A soft, plain-knitted fabric used for clothing.
2.
a. A shirt worn by an athlete, often displaying the name of the player, team, or sponsor.
b. A close-fitting knitted pullover shirt, jacket, or sweater.
3. often Jersey Any of a breed of fawn-colored dairy cattle developed on the island of Jersey and producing milk that is rich in butterfat.
[After Jersey.]
1. (Placename) an island in the English Channel, the largest of the Channel Islands: forms, with two other islands, the bailiwick of Jersey; colonized from Normandy in the 11th century and still officially French-speaking; noted for finance, market gardening, dairy farming, and tourism. Capital: St Helier. Pop: 87 500 (2003 est). Area: 116 sq km (45 sq miles)
2. (Breeds) a breed of dairy cattle producing milk with a high butterfat content, originating from the island of Jersey
jersey (ˈdʒɜ��zɪ)
n
1. (Clothing & Fashion) a knitted garment covering the upper part of the body
2. (Textiles)
a. a machine-knitted slightly elastic cloth of wool, silk, nylon, etc, used for clothing
b. (as modifier): a jersey suit.
3. a football shirt
[C16: from Jersey, from the woollen sweaters traditionally worn by the fishermen]


(c) Labor Certification.

(1) General.

An H-2B petition must be filed on Form I-129, Petition for a Nonimmigrant Worker, with an approved temporary labor certification from the Department of Labor (DOL) or, if the work will be located in Guam, from the Governor of Guam or Guam Department of Labor (Guam DOL) certifying 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. [See 8 CFR 214.2(h)(6)(iv)(A).] For employment in the Virgin Islands, such certifications can be issued only for 45 days and are limited to athletes and entertainers. [See 8 CFR 214.2(h)(6)(iv)(C).]

(2) Employment Start Date.

Effective fiscal year 2010, H-2B petitioners may not request an employment start date on Form I-129 that is different than the date of employment need listed on the accompanying approved temporary labor certification. [See 8 CFR 214.2(h)(6)(iv)(D)]. The only exception to this applies when an amended H-2B petition, accompanied by a copy of the previously approved temporary labor certification and a copy of the initial petition approval notice, is filed at a later date to substitute workers as stated in 8 CFR
214.2(h)(6)(viii)(B). For employment beginning October 1, 2009 (the start of fiscal year 2010), petitions filed with a start date different from the date listed on the temporary labor certification that do not meet this exception will be denied by USCIS without prior issuance of a request for evidence.

(3) Musicians to Be Employed Within 50 Miles of the Canadian Border.

The DOL has pre-certified that qualified persons are unavailable in the Canadian-United States border area (50 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 30 days would not adversely affect the wages and working conditions of workers in the United States who are similarly employed. As such, a temporary labor certification for Canadian musicians within 50 miles of the Canadian border is not required, as per TEGL (Training and Employment Guidance Letter) 31-05 of May 31, 2006 signed by Emily Stover DeRocco. Where the Canadian-United States boundary line is within a body of water, such as the Great Lakes, the 50-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 30 days, the prospective employer must file with the DOL for the required temporary labor certification and, upon receipt thereof, shall file a petition with the appropriate Service Center.

(d) H-2B Eligible Countries.

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program. A list of H-2B eligible countries will be published in a notice in the FR on a rolling basis. This list was initially developed based, in part, on an identification of the top participating countries in the H-2A and H-2B visa programs and their record of timely acceptance of the return of their nationals who are removed from the United States. Designation of countries on the list of eligible countries will be valid for one year from publication. The first H-2B Eligible Countries List was published in the FR on December 19, 2008. [See 73 FR 77729.] This list is also posted on the USCIS website.

A national from a country not on the H-2B eligible country list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security, in her sole and unreviewable discretion, determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 31.5(g)(3) of the AFM and 8 CFR
214.2(h)(6)(i)(E)(2).]

(e) Petitioner Requirements.

(1) An H-2B petitioner may be a United States employer, a United States agent, or a foreign employer filing through a United States agent.

A United States agent may file a petition in one of the following cases where:

– Workers are traditionally self-employed;

– Workers use agents to arrange short-term employment on their behalf with numerous employers; or

– A foreign employer authorizes the agent to act on its behalf.

Furthermore, a petitioner may not file an H-2B petition unless it has obtained a temporary labor certification with the Department of Labor.

A foreign employer (one not subject to service of process in the United States) which has no location in the United States must use the services of a United States agent. A United States agent must be authorized to file the petition and to accept service of process in the United States in proceedings. A United States agent must also consider available United States workers for the temporary services or labor and offer terms and conditions of employment that are consistent with the same type of employment in the United States.

The petitioner must submit with the petition:

– An approved temporary labor certification issued by the DOL or the Governor of Guam unless the DOL
has pre-certified the position (see paragraph (b)(2));

– Evidence addressing the temporary nature of the prospective employer��s need;

– Evidence of the need for the number of workers requested;

– Evidence of the qualifications of the beneficiary(ies), if applicable;

– If an agent filing a petition on behalf of a petitioner, evidence that an agent meets one of the conditions in
8 CFR 214.2(h)(2)(i)(F);

–        If an agent filing on behalf of multiple employers, a complete itinerary of services or engagements specifying the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed.


(2) All H-2B petitions must state the nationality of all beneficiaries. [See AFM 31.5(d).]

To avoid processing delays, petitioners are advised to file the petitions for workers from H-2B eligible countries and non-eligible countries separately. [See 8 CFR 214.2(h)(2)(ii).]

Adjudicating officers will issue a request for evidence when petitions filed on behalf of a combination of aliens from both H-2B eligible and non-eligible countries lack sufficient evidence to establish whether the beneficiaries from non-eligible countries qualify for H-2B classification.

(3) The petitioner is responsible for return transportation costs if the alien is dismissed for any reason prior to the end of the validity period of the petition.

(4) Employment-Related Notification. The petitioner must agree to notify USCIS within 2 work days if:

– a worker fails to report to work within 5 work days of the employment start date on the petition;

–        the temporary labor or services for which workers were hired is completed more than 30 days earlier than the employment end date stated on the petition; or

–        the worker has not reported for work for a period of 5 consecutive work days without the consent of the employer or the worker is terminated prior to the completion of the temporary labor or services for which he or she was hired.

[See 8 CFR 214.2(h)(6)(i)(F)(1).] Instructions explaining how a petitioner should make an employment-related notification to USCIS were published in a notice in the FR on December 19, 2008. [See 73 FR 77816].

Please note: USCIS defers to the DOL��s definition of ��workday�� which, according to the Fair Labor Standards Act, in general, means the period between the time on any particular day when an employee commences his/her ��principal activity�� and the time on that day at which he/she ceases such principal activity or activities

(5) Payment of Fees by Aliens to Obtain H-2B Employment.

An H-2B petition will be denied or revoked on notice if USCIS determines that the petitioner has collected, or entered into an agreement to collect a fee or compensation as a condition of obtaining the H-2B employment, or that the petitioner knows or should have known that the beneficiary has paid or agreed to pay any facilitator, recruiter, or similar employment service as a condition of obtaining the H-2B employment. The types of fees that would be prohibited include: recruitment fees, attorneys�� fees, and fees for preparation of visa applications. Prohibited fees do not include the lower of the fair market value or the actual reasonable costs of transportation to the United States and any payment of government-specified fees required of persons seeking to travel to the United States (e.g., fees required by a foreign government for issuance of passports, fees imposed by the U.S. Department of State for issuance of visas, inspection fees), except where the passing of such costs to the worker is prohibited by statute or by DOL regulation. [See Arriaga v. Florida Pacific Farms, L.L.C., 305 F.3d 1228 (11th Cir. 2002) (barring the passing of various costs to alien workers); see also, U.S. Department of Labor, ��Notice of Withdrawal of Interpretation,�� 74 F.R. 13261–62 (citing H-2B cases applying Arriaga).]

All H-2B petitioners are required to attest in the H Classification Supplement submitted with the Form I-129 whether:

(A) The petitioner has used a staffing, recruiting, or placement service or agent to locate the H-2B workers included in the petition. If so, the name and address of the service and/or agent should be provided;

(B) The beneficiaries have paid any form of compensation as a condition of the employment (or have made an agreement to pay such compensation at a later date), not including the lower of the fair market value or actual reasonable costs of transportation to the United States and government-specified fees required for travel to the United States (provided the passing of such costs by the petitioner/employer to the beneficiary is not prohibited by law) for which the beneficiary may be responsible, and answer the following:

1) If the beneficiary has paid any form of compensation, has the beneficiary been reimbursed? If yes, evidence of the reimbursement must be submitted.

2) If the beneficiary has made an agreement to pay such compensation at a later date, has this agreement been terminated? If yes, evidence of the termination must be submitted.
AND

(C) The petitioner ever had an H-2B petition denied or revoked because an employee paid a job placement fee or other compensation. If so, information about when the petition was denied or revoked and the petition receipt number must be provided. If the worker(s) was/were reimbursed for such fees or compensation, evidence of reimbursement must be submitted. If the worker(s) was/were not reimbursed because of the failure to locate the beneficiary, evidence of the efforts to locate the beneficiary must be submitted.

Adjudicating officers will verify that the petitioner has signed the attestation included on the H Classification Supplement and will review the petitioner��s answers to ensure that they are consistent with the petitioner��s type of business.

If the alien has paid prohibited fees, the petition will not be denied or revoked if the petitioner demonstrates that:

– prior to the filing of the petition, the alien beneficiary has been reimbursed for the prohibited fees paid;

– where the prohibited fees have not yet been paid, that the agreement to pay has been terminated; or

–        where, after the petition is filed, the petitioner learns that the prohibition on collecting or agreeing to collect a fee has been violated by a recruiter or agent, the petitioner notifies USCIS about the prohibited payments, or agreement to make such payments, within 2 work days of finding out about such payments or agreements. [See 8 CFR 214.2(h)(6)(i)(B)(4).]

Instructions explaining how a petitioner should make a fee-related notification to USCIS were published in a notice in the FR on December 19, 2008. [See 73 FR 77816].

If the H-2B petition is denied or revoked on these grounds, then, as a condition of approval of future H-2B petitions filed within one year of the denial or revocation, the petitioner must demonstrate that the beneficiary has been reimbursed or that the beneficiary cannot be located despite the petitioner��s reasonable efforts. [See 8
CFR 214.2(h)(6)(i)(D).]

(f) Multiple Beneficiaries.

More than one beneficiary may be included in an H-2B petition as long as the total number of beneficiaries does not exceed the number of positions certified by the DOL or Guam DOL (if applicable) on the relating temporary labor certification and the beneficiaries will be performing the same service, or receiving the same training, for the same period of time, and in the same location.

(g) Beneficiary Requirements:

(1) Petitions filed on behalf of beneficiaries currently in the United States requesting a change of status or extension of stay in H-2B status, must identify each beneficiary and provide evidence to show that each beneficiary meets the minimum employment and job training requirements listed on the temporary labor certification (if applicable).

(2) Petitions filed on behalf of beneficiaries who are outside the United States requesting consular notification are not required to identify the beneficiaries or to provide evidence of each beneficiary��s qualifications and/or education with the petition, since such evidence may be submitted to the consulate at the time of a visa application or to CBP at the port of entry/pre-flight inspection upon admission.

(3) Beneficiaries from countries not listed as eligible for H-2B classification. The H Classification Supplement to the Form I-129 revised 1/22/09 (p. 8–12 of the form) now requires a petitioner who chooses to file a petition on behalf of H-2B workers who are not from a country that has been designated as an H-2B eligible country to name those beneficiaries and provide the following information about such beneficiaries:

– Full name;

– Date of birth;

– Country of birth; and

– Country of citizenship.

This provision applies both to beneficiaries who are currently within the United States who are seeking an extension of H-2B stay or change of status to H-2B, as well as to beneficiaries who are outside of the country. A petition filed on behalf of H-2B workers who are not from a country that has been designated as an eligible country may be approved only if USCIS determines that it is in the U.S. interest for that alien to be a beneficiary of such petition. [See 8 CFR 214.2(h)(6)(i)(E).] In order to make this discretionary determination of U.S. interest, USCIS may take into account the following factors, including but not limited to:

–        Evidence that a worker with the required skills is not available from a country on the list of eligible countries;

–        Evidence that the beneficiary has been admitted to the United States previously in H-2B status and complied with the terms of his/her status;

–        Any potential for abuse, fraud, or other harm to the integrity of the H-2B program through the potential admission of these worker(s) that a petitioner plans to hire; and

– There are other factors that would serve the U.S. interest, if any.

Each request for a U.S. interest exception is fact-dependent, and therefore must be considered on a case-by- case basis. Although USCIS will consider any evidence submitted to address each factor, USCIS has determined that it is not necessary for a petitioner to satisfy each and every factor. Instead, a determination will be made based on the totality of circumstances. For factor no. 3, USCIS will take into consideration, among other things, whether the alien is from a country that cooperates with the repatriation of its nationals. For factor no. 4, circumstances that are given weight, but are not binding, include evidence substantiating the degree of harm that a particular U.S. employer, U.S. industry, and/or U.S. government entity might suffer without the services ofH-2B workers from non-eligible countries.

Petitions filed on behalf of beneficiaries from non-eligible countries that do not initially provide sufficient evidence to overcome the requirements of 8 CFR 214.2(h)(6)(i)(E)(2) will be issued a request for evidence allowing 30 days to respond to USCIS.

(4) 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. [See 8 CFR
214.2(h)(16)(ii).]

(h) Decision Procedures.

(1) Approval.

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.]

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