What constitutes a Worksite for H-2B purposes?

Maria del Carmen Ramos
Maria del Carmen Ramos

The issue of multiple worksites presents a conundrum for many employers. As a result, the Department of Labor’s Office of Foreign Labor Certification (OFLC) recently issued guidance for H-2B positions (such as landscapers, tour guides, truck drivers) involving multiple worksites.

By way of background, the H-2B visa is a temporary working visa for nonagricultural workers. Specifically, employers who anticipate a labor shortage and, therefore, a need for temporary workers, can petition for an H-2 visa. In order to obtain that type of visa, the employer must be able to show three things: (1) there are not enough willing, able, and qualified U.S. workers; (2) employing the foreign worker will not adversely affect the wages and working conditions of similar U.S. workers; and (3) the need for the foreign worker’s services is temporary or seasonal. The idea behind the requirements for the H-2B visa is to prevent U.S. employers hiring foreign workers at the expense of U.S. workers.

OFLC’s new guidance provides that a “worksite” is a location where the worker performs one or more duties of the job opportunity. More importantly, if the job will result in work being performed at multiple locations not located within a single area of intended employment, a separate labor certification application will be required.  This is significant because the requirement of filing separate applications for each worksite will result in employers incurring the additional costs of obtaining an approval for each application required.

Finally, the one recognized exception is instances where “travel is the exception to the norm.” In such cases, OFLC will consider the primary location where the work is performed as the official worksite and will permit certification of the position in a single application.

For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.

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