The H-2B Temporary Nonimmigrant Labor Certification permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. H2-B cases should be filed at least 60 days, but not more than 120 days before the worker is needed, to allow time for processing delays and correction of application errors.

The employer's need for temporary non-agricultural services or labor must be justified under one of the following standards: One-Time Occurrence, Seasonal Need, Peakload Need, and Intermittent Need. A completed Form ETA 750 in duplicate needs to filed with the local State Workforce Agency (SWA). The employer must send a letter with original signature on company letterhead explaining the necessity of the need for temporary workers. Supporting documents must also be submitted.

The SWA instructs the employer on recruitment requirements; appropriateness of the wages and working conditions offered and refers qualified candidates to the employer for interviews. The employer has the option to advertise for 3 consecutive calendar days in a daily; or in a readily available professional, trade or ethnic publication plus additional advertisements, whichever the SWA determines is most appropriate for the occupation and most likely to bring responses from U.S. workers. Resumes/applications of referrals are to be directed to the SWA. At the same time as the advertisement, a job order is issued in the Job Link/Job Bank for a recruitment period of 10 days. After the 10 day period, the employer prepares a recruitment report, which summarizes the results of the effort (including names and addresses of applicants and lawful reasons for not hiring the interviewees) is sent to the SWA in another 7 days with original copies of newspaper tearsheets or affidavit of publication for each day the advertisement was published and any other supporting documentation. The recruitment report, tearsheets, and supporting documentation need to be sent to the SWA.

Then the package for certification shall be forwarded to the Atlanta National Processing Center (ANPC) and an ANPC certifying officer will grant certification if he/she finds that qualified persons in the United States are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed.

The approval certification or notice of denial is to be used by the employer to support its visa petition to be filed with the district director of the USCIS. The DOL decision is only an advisory to USCIS; there is no appeal process within the DOL for denial for H-2B applications. Such appeals must be filed with the USCIS.

A prevailing wage determination can be issued prior to filing by sending a prevailing wage request form to the FLC Unit. For any additional information, please refer to the U.S. DOL Foreign Labor Certification Website for H2-B Certification for Temporary Nonagricultural Workers.