FOREIGN LABOR CERTIFICATION

H-2B Temporary Employment
Non-Agricultural Occupations

Program Description:

The H-2B program allows U.S. employers to hire foreign workers (skilled or non-skilled) for a temporary employment time frame of up to one year.  All occupations under the H-2B program are non-agricultural.  Employers filing under the H-2B program must demonstrate that there are no qualified or available U.S. workers to fill the existing job opening.  Part-time employment does not qualify for temporary labor certification.

Regulation:

20 CFR, Part 655, Subpart A

The employer’s temporary need for services or labor must meet one of the following categories:

1. One-time occurrence

   1. The employer has not employed workers to perform the services or labor in the past and that the employer will not need workers to perform the services or labor in the future.

   2. The employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

   Example:

   Employer obtains an unexpectedly large, one-time contract to furnish a product or service considerably above its current capacity.

2. Seasonal need

   The employer must establish that the service or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature.

   Example:

   The occupation is available mainly due to a season, because the weather prevents activity during the remainder of the year. For example: Ski Instructors or Landscape Laborers.

3. Peakload need 

   The employer must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and also that it needs to supplement its permanent staff on a temporary basis.  This would be due to a seasonal or short-term errand with temporary employees who will not become a part of the regular operation. The category overlaps, to some extent, with one-time or seasonal categories.

Example:

The employer has a greater demand for workers during the height of the busy season as opposed to the beginning and ending periods of the seasonal bulge.

For example: A hotel hiring additional housekeepers during the tourist season (their busiest season).

4. Intermittent need

The employer 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 for a short period.

Example:

The temporary need for a repairperson or a technician to work on machines that were purchased abroad.

Filing Process:
 

1. The prospective employer must complete Form ETA 750, Part A, in triplicate. The forms must be double-sided and contain the employer’s original signature (no copies). 

2. If an attorney is representing the employer then a G-28 form must also be submitted with the application. 

3. The employer must provide a letter describing and justifying the temporary need (one-time occurrence, seasonal, etc.) for employing the worker. The letter must be on the employer’s letterhead and signed by the same employer who signed the ETA 750 forms. 

4. The application may not be submitted more then 120 days before the foreign workers are needed on the job. However, to allow sufficient time to process the application it is advised that the application be submitted at least 90 days before the worker is needed.

5. The application will be given a priority date (the filing date) and evaluated by the Foreign Labor Certification (FLC) staff.  The employer will be notified of any deficiencies with the application that must be corrected to continue processing.

6. A job order will be placed for recruitment in a computerized job bank for 10 days.  In addition, the employer will be given instructions on placing a job advertisement (published 3 consecutive days) in a newspaper for recruiting U.S. workers.

7. During the time of recruitment the FLC staff collects and reviews all resumes, applications and letters of interest from individuals. 

8. After the 10 days of recruitment ends the employer is referred all qualified applicants for further contact and an interview.  The employer is also provided with written instructions for preparing the results of recruitment.  In the recruitment results the employer must provide lawful job-related reasons for not hiring a referred U.S. worker.

9. The employer sends the recruitment results and the tearsheets (the newspaper page displaying the employer’s ad) to the FLC Unit for further processing.  The recruitment results are evaluated and the employer or employer’s representative is contacted concerning any deficiencies in the documents.

10. The application is prepared for transmittal to the U.S. Department of Labor, (Regional Certifying Officer) by FLC staff for a certification determination. The Regional Office for Colorado is Region IV, located in Dallas , Texas .

11. The Regional Certifying Officer issues the “Final Determination,” which either   grants certification or denies certification.

12. A certification is to be used by the employer in support of petitioning for an H-2B visa with the Bureau of Citizenship and Immigration Services (formally INS).

13. Appeals to a denial issued by the Regional Certifying Officer must be filed with the BCIS.

Wage Requirements:

The Immigration and Nationality Act (INA) requires that the wage paid to temporary foreign workers must meet or exceed the prevailing wage.  The prevailing wage is the rate of pay that other ( U.S. ) workers receive in a similar occupation with similar qualifications in the same area of employment.  The CDLE staff will determine a prevailing wage at the time the application is filed.  However, the employer may request a prevailing wage determination prior to submitting the application by filling out the Prevailing Wage Request Form.

Where to File:

Mail the application (with the materials listed in items 1-3 of the “Filing Process”) to:

Colorado Department of Labor & Employment
Foreign Labor Certification Unit
633 17th St, Suite 700
Denver , CO 80202-3660
 

Click here to go to the website for downloading the ETA 750 form, Part A, and the instructions for completing the form. 
 

NOTE: the forms will print single-sided, but they must be submitted double-sided with original signatures. Part B is not needed for filing for H-2B, temporary employment.
 

Click here to request a packet with the forms and the instructions for completing the forms.  You must provide a mailing address for the CDLE office to send you the packet.