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The H-2B program’s underlying premise is that before an H-2B application can be approved, employers are obliged to a) establish terms and conditions of the job which are not unduly restrictive and deter recruitment of US workers; b) pay market-based wages which do not undercut the domestic labor market in the geographic area; and c) aggressively recruit and hire US workers. These obligations are set by law and regulation with one purpose: to compel H-2B employers to identify and hire qualified US workers as a condition of the program.
The purpose of the H-2B program is to benefit American workers and America’s small and seasonal businesses. Period. The role of the Department of Labor in this process is to ensure that employers qualify for the H-2B program and demonstrate a legitimate need. A legitimate need is defined as seasonal, peak load, or one-time in nature.
Peak load. The employer must demonstrate that:
– It regularly employs permanent workers to perform the services or labor at the place of employment.
– There is a temporary need to increase staff because of a specific, short-term demand (e.g., seasonal spikes or special events).
– The temporary workers hired under the H-2B program will not become part of the employer’s regular, ongoing operations.
Seasonal. A seasonal labor need that is tied to a specific season or time of year by an event or pattern (usually weather), such as a recurring cycle of agricultural, tourism, or other seasonal activities. According to the U.S. Department of Labor and U.S. Citizenship and Immigration Services (USCIS), the need must be predictable and recurring, generally lasting less than one year, and tied to a particular season (e.g., summer for amusement parks, winter for ski resorts, or harvest seasons for agriculture).
One-time occurrence. The employer must demonstrate that:
– They have not previously employed workers to perform the specific services or labor.
– They will not need workers to perform these services or labor in the future, or the need arises from a temporary event of short duration that is not part of regular operations.
Employers must first obtain a Prevailing Wage Determination from the National Prevailing Wage Center to establish the wage which must be offered to H-2B and U.S. corresponding workers. The wage assigned is the Level 3 average wage for the occupation.
No sooner than 90 days before the requested start and no later than 75 days, the employer must file an application with DOL. When DOL issues a Notice of Acceptance (NOA), the employer must open a job order in the corresponding State Workforce Agency (SWA).
Once the job order has been placed or the request to open the job to the SWA has been made, US-based recruitment begins. The Employer is required to actively recruit US workers for at least 15 consecutive days prior to submitting their Initial Recruitment results. Employers are also required to contact all U.S. workers from the previous season. Based on processing, employers must keep the job order open until 21 days prior to the start date or for at least 15 consecutive days. (Ex: April 1, 2025, start date means the job order will be open until March 12, 2025)
If a U.S. applicant applies or is referred:
– Employer must contact the applicant and produce a final disposition as to if the person is hired for the position requested.
– U.S. workers must be given an opportunity to respond or decline the job. The decline must be then documented and submitted to DOL to remain in compliance with H-2B regulations.
If a U.S. worker is hired for the requested occupation, then DOL will reduce the number of certified positions accordingly—meaning if an employer applied for 15 workers and hired 3 U.S. workers, the employer would only be certified to request 12 H-2B workers.
Employers must follow strict and supervised recruitment efforts before they are permitted to hire an H-2B worker. Employers must accept prospective worker referrals from their State Workforce Agency (SWA). Advertising is mandatory. The SWA keeps a record of these applicants and DOL demands to know the disposition of every applicant and referral prior to certifying a position available for an H-2B worker.
