H-2B Visa Application Process
How it Works
An employer seeking to fill job opportunities through the H-2B program must demonstrate that it has a temporary need for the services or labor, as defined by one of four regulatory standards: (1) a one-time occurrence; (2) a seasonal need; (3) a peak-load need; or (4) an intermittent need. Generally, that period of time is limited to nine (9) months or less, except in the case of a one-time occurrence, which could last up to 3 years.
The employer must obtain a Prevailing Wage Determination (PWD) at least 60 calendar days before it is needed. The recommended timeframe is between 150 – 135 days before the start date of need. Obtain a PWD from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (ETA Form 9141). The PWD application is available for electronic filing on the FLAG site and filing by mail.
The employer must create an account on the state's Job Order System and post a job order that meets the following requirements:
State the employer's name and contact information.
State that the job opportunity is "temporary and full-time."
State the total number of job openings.
Provide a description of the job opportunity, including duties to be performed, minimum education and experience requirements, work hours and days, and the anticipated start and end dates of employment.
If applicable, state "on-the-job-training will be provided."
Indicate the geographic area of employment sufficiently to apprise applicants of any travel requirements to the job and where applicants will likely have to reside to perform the services or labor. NOTE: If filing as a joint employer or job contractor, the job order must clearly identify all worksite locations where workers will perform labor or services.
State the actual wage or range of wage offers (in the event there are multiple) that will be provided to workers. The wage offer must equal or exceed the highest of the prevailing wage or the Federal, State, or local minimum wage.
State whether overtime will be available and if so, state the actual wage that will be provided to workers working any overtime hours.
State "a single workweek will be used to compute wages due."
State the frequency with which workers will be paid. For frequency of pay, workers must be paid at least every 2 weeks or according to the prevailing practice in the area of employment, whichever is more frequent.
State "all deductions from the workers' paycheck required by law will be made." The job order includes information, including any elective deductions. And disclosure all other deductions not required by law the employer intends to make. Elective deductions related to the provision of board, lodging, or facilities must be reasonable and based on the fair value of such benefits.
State, "the employer will provide workers at no charge all tools, supplies, and equipment required to perform the job."
The job order must include information disclosing the three-fourths guarantee and include at least the following language:
If the employer's anticipated period of employment will last 120 days or more, state the following: "The employer guarantees to offer work for hours equal to at least three-fourths of the workdays in each 12-week period of the total employment period."
If the employer's anticipated period of employment will last less than 120 days, state the following: "The employer guarantees to offer work for hours equal to at least three-fourths of the workdays in each 6-week period of the total employment period."
PLEASE NOTE: THE THREE-FOURTHS GUARANTEE IS NOT REQUIRED DUE TO THE 2017 OMNIBUS.
The job order must include information regarding the first-week reimbursement of certain fees and includes at least the following language: "H-2B workers will be reimbursed in the first workweek for all visa, visa processing, border crossing, and other related fees, including those mandated by the government (excluding passport fees)."
The job order must include information disclosing the transportation/subsistence reimbursement guarantee and includes at least the following language: "Transportation (including meals and, to the extent necessary, lodging) to the place of employment will be provided, or its cost to workers reimbursed if the worker completes half the employment period. Return transportation will be provided if the worker completes the employment period or is dismissed early by the employer."
If applicable, the job order should disclose the provision and cost of any board, lodging, or other facilities, including fringe benefits or assistance to be provided to the workers in securing such benefits.
If applicable, the job order discloses that daily transportation to and from the worksite(s) will be provided to the workers (e.g., centralized designated daily pick-up places will need to be disclosed, if the employer offers such).
The job order must inform the applicants that they should apply for the job at the nearest office of the SWA. The job order should include the SWA contact information and, if applicable, the job order number.
PLEASE NOTE: AGENTS FILING ON BEHALF OF EMPLOYERS SHOULD CREATE AN ACCOUNT UNDER THE EMPLOYERS NAME AND NOT THE AGENTS NAME!
The employer must file a job order and H-2B application no more than 90 days and no less than 75 days prior to the date of need. Submit the H-2B application (ETA Form 9142B) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC). The H-2B Application package which includes the ETA Form 9142B, copy of Appendix B, the Prevailing Wage Determination issued by the National Prevailing Wage Center or tracking number, a copy of the job order, and any applicable supporting documentation may be filed electronically through the FLAG System. Assistance with setting up a FLAG account may be found here Applications may also be filed with the Chicago NPC by mail at the following address:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
Attn: H-2B ApplicationThe SWA reviews the job order for compliance with program requirements as soon as possible but no later than six (6) business days of receipt.
The Chicago NPC reviews the H-2B application and job order for compliance with program requirements within 7 business days of receipt.
Within seven (7) business days of receipt of the application, the Chicago NPC will notify the employer in writing of the decision to either accept (Notice of Acceptance) or not accept (Notice of Deficiency) the employer's application and/or job order.
A Notice of Deficiency identifies the deficiencies found by the SWA and Chicago NPC and provides the employer the opportunity to address those deficiencies with the application and/ or job order.
Each notification will also provide next steps for the employer to take.
Within fourteen (14) days of receipt of a Notice of Acceptance, the employer must follow the instructions provided in the Notice of Acceptance and conduct recruitment, including:
placing newspaper advertisements,
contacting former U.S. workers,
contacting the bargaining representative (if any) or posting notice of the job opportunity to the employer's current employees, and
conducting any additional recruitment, if directed by the Certifying Officer.
The Certifying Officer in the Notice of Acceptance will specify a date for the employer's initial recruitment report.
The Certifying Officer will place a copy of the SWA job order on the FLAG Public Job Registry.
After receipt of the initial recruitment report, the Chicago NPC will determine whether to certify or deny the application and issue the final determination.
The final determination will be sent to the employer and, if applicable, the employer's attorney or agent by means normally assuring next day delivery.
The employer completes the footer of Appendix B and submits the certified ETA Form 9142B with a copy of Appendix B with the petition package to the USCIS Service Center. The original Appendix B is retained in the employer's retention file.
The employer is obligated to continue to update the recruitment report and prepare a final recruitment report.
The updated report need not be submitted to the FLC Department but must be retained in the employer's retention file and made available in the event of a post-certification audit or upon request by the Department.
The employer must also continue to accept referrals of U.S. applicants until 21 days before the date of need.
Employers may request redeterminations from the Certifying Officer on partial certifications and denials.
Employers may appeal for administrative review of Notices of deficiency, partial certifications, denials of labor certification, denials of redetermination requests, denials of modified applications or job orders, and denials of extension requests.
