Wolfsdorf Rosenthal LLP

Labor Dept. Releases FAQ on Staggered Crossings of H-2B Nonimmigrants in the Seafood Industry


The Consolidated Appropriations Act of 2014, signed into law on January 17, 2014, includes a provision permitting the staggered entry of H-2B workers in the seafood industry under certain conditions. The Office of Foreign Labor Certification (OFLC) released frequently asked questions (FAQ) clarifying the agency’s role with respect to implementation of the new provision. OFLC noted that all employers submitting an H-2B application for temporary employment certification must indicate their temporary need accurately, and include the starting and ending dates of need for the period in which they intend to employ H-2B nonimmigrant workers. The 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need if certain conditions are met.

For employers to use this provision, H-2B nonimmigrant workers must show to consular officers and to U.S. Customs and Border Protection officers, as necessary, the employer’s attestation that the conditions contained in the statute have been met. Any seafood industry employer that permits or requires its H-2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need, which must include:

  1. Listing job orders in local newspapers on two separate Sundays; 
  2. Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and 
  3. Offering the job to any equally or better qualified U.S. worker who applies for the job and who will be available at the time and place of need.

OFLC noted that a seafood industry employer must prepare a written, signed attestation indicating its compliance with the statutory conditions. Employers must download the official attestation, review the conditions contained in the attestation, and indicate compliance by signing and dating it. Such employers must provide each of their H-2B nonimmigrant workers seeking entry into the United States a copy of the signed and dated attestation, with instructions that the worker must present the documentation upon request.

This provision expires on September 30, 2014. Accordingly, no staggered entry of H-2B workers after that date will be permitted, the Department said.

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