(6) Petition for alien to perform temporary nonagricultural
services or labor (H-2B)--
(i) General. An H-2B nonagricultural temporary worker is an
alien who is coming temporarily to the United States to perform temporary
services or labor, is not displacing United States workers capable of
performing such services or labor, and whose employment is not adversely
affecting the wages and working conditions of United States workers.
(ii) Temporary services or labor.--
(A) Definition. Temporary services or labor under the H-2B
classification refers to any job in which the petitioner's need for the duties
to be performed by the employee(s) is temporary, whether or not the underlying
job can be described as permanent or temporary.
(B) Nature of petitioner's need. As a general rule, the period
of the petitioner's need must be a year or less, although there may be
extraordinary circumstances where the temporary services or labor might last
longer than one year. The petitioner's need for the services or labor shall be
a one-time occurrence, a seasonal need, a peakload need, or an intermittent
need:
(1) One-time occurrence. The petitioner must establish that it
has not employed workers to perform the services or labor in the past and that
it will not need workers to perform the services or labor in the future, or
that it has an employment situation that is otherwise permanent, but a
temporary event of short duration has created the need for a temporary
worker.
(2) Seasonal need. The petitioner must establish that the
services or labor is traditionally tied to a season of the year by an event or
pattern and is of a recurring nature. The petitioner shall specify the
period(s) of time during each year in which it does not need the services or
labor. The employment is not seasonal if the period during which the services
or labor is not needed is unpredictable or subject to change or is considered
a vacation period for the petitioner's permanent employees.
(3) Peakload need. The petitioner must establish that it
regularly employs permanent workers to perform the services or labor at the
place of employment and that it needs to supplement its permanent staff at the
place of employment on a temporary basis due to a seasonal or short-term
demand and that the temporary additions to staff will not become a part of the
petitioner's regular operation.
(4) Intermittent need. The petitioner 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 to perform
services or labor for short periods.
(A) Prior to filing a petition with the director to classify an
alien as an H-2B worker, the petitioner shall apply for a temporary labor
certification with the Secretary of Labor for all areas of the United States,
except the Territory of Guam. In the Territory of Guam, the petitioning
employer shall apply for a temporary labor certification with the Governor of
Guam. The labor certification shall be advice to the director on whether or
not United States workers capable of performing the temporary services or
labor are available and whether or not the alien's employment will adversely
affect the wages and working conditions of similarly employed United States
workers.
(B) An H-2B petitioner shall be a United States employer, a
United States agent, or a foreign employer through a United States agent. For
purposes of paragraph (h) of this section, a foreign employer is any employer
who is not amendable to service of process in the United States. A foreign
employer may not directly petition for an H-2B nonimmigrant but must use the
services of a Unites States agent to file a petition for an H-2B nonimmigrant.
A United States agent petitioning on behalf of a foreign employer must be
authorized to file the petition, and to accept service of process in the
Unites States in proceedings under section 274A of the act, on behalf of the
employer. The petioning employer shall consider available United States
workers for the temporary services or labor, and shall offer terms and
conditions of employment which are consistent with the nature of the
occupation, activity, and industry in the United States, (Revised 4/16/97;
62 FR 18508).
(C) The petitioner may not file an H-2B petition unless the
United States petitioner has applied for a labor certification with the
Secretary of Labor or the Governor of Guam within the time limits prescribed
or accepted by each, and has obtained a labor certification determination as
required by paragraph (h)(6)(iv) or (h)(6)(v) of this section.
(D) The Secretary of Labor and the Governor of Guam shall
separately establish procedures for administering the temporary labor
certification program under his or her jurisdiction.
(E) After obtaining a determination from the Secretary of Labor
or the Governor of Guam, as appropriate, the petitioner shall file a petition
accompanied by the labor certification determination and supporting documents,
with the director having jurisdiction in the area of intended employment.
