H2B Visa: Dealing with DOL vs. USCIS

Posted on 5月 15, 2007 by Warren Wen | Category: Immigration

Process by the Department of Labor vs. the USCIS

In the previous article, we introduced how H-2B visa could help employers to deal with the labor shortage issue.  After the article, many interested employers have inquired about the general procedures and the types of the U.S. government agencies they would need to deal with in applying for H-2B visa.

Mr. Zhu asked:

I own a landscaping company.  I’m in need of a lot of new workers because I recently got an order for a big project.  Because of the shortage in labors in the United States, I have big difficulties in hiring qualified workers in the U.S. as many other employers are.  From reading your column articles, I was excited to know that it may be possible to bring foreign workers to the United States in a fairly short time. In terms of the procedure, I was told by other people that I would only need to deal with the USCIS, not the Department of Labor.  Is this true?

Answer:  

No, it is NOT true.  When applying for H-2B visa, the employer would need to deal with both the Department of Labor and the USCIS. About a year ago, there was a proposal to streamline the H-2B process, so that the Department of Labor will no longer be involved, but the proposal was not followed through.  Under the current system, the employers are still required to apply for the Temporary Labor Certification with the Department of Labor in order to prove that there are no qualified U.S. workers who are willing take the job offer.

In terms of the procedures, generally speaking, there are three steps in H-2B application process: (1) filing of Temporary Labor Certification application with the Department of Labor; (2) filing of H-2B petition with the USCIS; and (3) the H-2B visa interview with the U.S. Embassy at overseas.

In the first step, the employer needs to prove that there are temporary needs for the workers and that there are no qualified U.S. workers who are willing to take the job. In practice, the employer needs to file ETA-750A and a statement addressing the temporary need with the State Department of Labor (DOL). After the State DOL receives the application, it will ask the employer to carry on with the recruitment process with the assistance and the supervision of the DOL. After the recruitment is done, the employer needs to file all necessary documents with the State DOL.  Then, the State DOL will transfer all the documents to the Federal DOL for the final decision.

After the Federal DOL made the decision, the employer can file the H-2B application and all supporting documents to the USCIS in order to prove that the position provided is temporary, that the employer has the financial capability to support the alien workers, and that the alien workers are qualified for the position. This step normally takes about one to two months.

If the application is approved by the USCIS, the alien workers will be scheduled for an interview at the U.S. Consular Offices at overseas.  In order to obtain the visa to come to the United States to work, the alien workers need to prove that the position is temporary and that he/she will leave the U.S. after the employment in the U.S. is terminated.

In closing, if Mr. Zhu wants to bring alien workers to the United States, he would need to deal with not only with the Department of Labor and the USCIS, but also the Department of State.  The whole process generally takes about three to six months.

 

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.