H-2B visa category is for workers performing temporary non-agricultural service or labor. To determine whether the job is temporary, the U.S. Citizenship and Immigration Service looks at the nature of the employer’s need. The employer petitioning for a worker must establish that the need for the employee will end in the near, definable, future. The request for labor must be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need.
The petitioning employer must obtain approved temporary labor certification demonstrating that no U.S. workers are available and that the employment will not adversely affect wage rate and working conditions of similarly situated U.S. workers. Prior to submitting the application for labor certification, the employer must obtain a prevailing wage determination. The temporary employment certification must be filed no more than 90 calendar days and no less than 75 calendar days before the employer’s need. Concurrently with the filing the application for temporary labor certification, the employer must submit a job order to state workforce agency (e.g., Arizona Department of Economic Security). The content and posting of the job order must meet the requirements of regulations. The job order must be placed no more than 90 calendar days before the date of employer’s need and must be open until 21 days before the date of the employer’s need for the employment. The Department of Labor has now gone back to a post-filing recruitment model requiring that the recruitment begin after the labor certification is approved. Once the Department of Labor approves the job order and the labor certification, is issues a notice of acceptance. Within 14 days from the notice of acceptance, employer must submit two ads on two separate consecutive days in newspaper of general circulation. One must be a Sunday advertisement (with some exceptions).
The approved labor certification with the H-1B petition is filed with the U.S. Citizenship and Immigration Services. Petitions may only be approved for nationals whose country is on a yearly list designated by the Department of Homeland Security, unless the Department of Homeland Security make an exception as a matter of discretion.
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