Chapter 11 - Temporary Nonagricultural Worker (H-2B) Petitions Requiring Special Handling

A. Temporary Workers on Guam and in the Commonwealth of the Northern Mariana Islands

1. General Eligibility Requirements

Exemption from Statutory Numerical Limitations[1]

The Consolidated Natural Resources Act of 2008 (CNRA)[2] includes a provision exempting H-2B workers performing labor or services on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) from the H-2B numerical limitation (H-2B cap) from November 28, 2009 to December 31, 2014.[3] In 2014, Congress amended the CNRA to extend the transition period until December 31, 2019.[4] In 2018, Congress further extended the Guam and CNMI H-2B and H-1B visa cap exemptions from 2019 to 2029.[5]

The H-2B cap exemption does not apply to any employment to be performed outside of Guam or the CNMI. As such, to qualify for this cap exemption, the petition must include an approved temporary labor certification (TLC) for work locations on Guam or in the CNMI only. An H-2B worker granted H-2B status under this Guam or CNMI cap exemption who ceases to be employed in H-2B classification solely on Guam or in the CNMI is subject to the H-2B cap.

A subsequent petition filed for such an H-2B worker (for example, a change of employer petition with a request for an extension of stay) requesting employment located outside of Guam or the CNMI is also subject to the H-2B cap.

Exemption from H-2B Temporary Need Requirement Under the NDAA

The National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) created an exemption from the temporary need requirement for certain H-2B workers directly connected to or associated with the military realignment on Guam through September 30, 2023.[6] Following the FY 2018 NDAA, the NDAA for Fiscal Year 2019 (FY 2019 NDAA)[7] took immediate effect on August 13, 2018, and made amendments to the H-2B workers provision as it relates to the temporary need exemption eligibility for H-2B workers on Guam and in the CNMI, including in part:

  • Extending its effectiveness through December 30, 2023;

  • Eliminating a previous numerical limitation established by the FY 2018 NDAA by which not more than 4,000 H-2B workers could be admitted annually under the NDAA; and

  • Providing an initial expansion of the eligible service or labor on Guam or in the CNMI.[8]

Expansion of Eligible Services or Labor under FY 2021 NDAA

The NDAA for Fiscal Year 2021 (FY 2021 NDAA) took immediate effect on January 1, 2021, and provided further expansion of the services or labor eligible under the temporary need exemption.[9] Specifically, the FY 2021 NDAA allows qualified H-2B workers to perform services or labor on Guam or in the CNMI that are either:

  • Under any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that are directly connected to, supporting, associated with, or adversely affected by, the military realignment occurring on Guam and the CNMI, with priority given to federally funded military projects; or

  • As a health care worker at a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.[10]

An employer who qualifies under the above parameters is not required to demonstrate that the service or labor is temporary in nature if the employment start date is before December 31, 2023. Petitions with employment start dates on or after December 31, 2023 are subject to adjudication under the law and regulations that apply to the H-2B program at that time.

For H-2B petitions for employment on Guam and in the CNMI that do not qualify under the NDAA exemption, USCIS adjudicates the petitions according to existing DHS regulations and policy concerning the H-2B classification.

2. FY 2021 NDAA Exemption Eligibility Involving Military Realignment

H-2B Petition Eligibility Directly Connected to, Supporting, Associated with, or Adversely Affected by the Military Realignment on Guam or in the CNMI

With the exception of health care workers (discussed below), consistent with the FY 2021 NDAA, USCIS requires petitioners requesting the NDAA temporary need exemption to demonstrate that all services or labor to be performed by H-2B nonimmigrants on Guam or in the CNMI are:

  • Performed as a result of an agreement entered into by a prime contractor or subcontractor;

  • For services or labor required for performance of a contract or subcontract that is:

  • For construction, repairs, renovations, or facility services; and

  • Directly connected to, supporting, associated with, or adversely affected by the military realignment on Guam and in the CNMI.

As required by the FY 2021 NDAA, USCIS gives priority to services or labor performed under a contract or subcontract for federally funded military projects.[11]

The “agreement” may be a “contract or subcontract.” To qualify for the NDAA exemption, any contract or subcontract for labor or services for construction, repairs, renovations, or facility services must be supporting, associated with, directly connected to, or adversely affected by the military realignment. It cannot be only incidentally or tangentially related to the realignment. The claimed relationship to the military realignment, whether directly connected to, associated with, supporting, or adversely affected by, cannot be purely speculative (that is, based on assertions with no documentation to support the claim). If the contract or subcontract includes multiple service or labor projects, all such projects must have at least one of the above-described relationships to the military realignment.

As stated above, while the H-2B temporary need exemption remains limited to contracts or subcontracts for “labor or services for construction, repairs, renovations, or facility services,” the FY 2021 NDAA language extends the previous exemption found in the FY 2019 to include those that are “supporting” or “adversely affected by” the military realignment, in addition to those that are directly connected to or associated with the realignment.

Exemption for Contracts or Subcontracts Supporting, Associated with, or Directly Connected to the Military Realignment

The FY 2021 NDAA’s addition of the term “supporting” to the terms “associated with” and “directly connected to” clarifies and emphasizes that the exemption may be granted with respect to agreements covering certain projects for construction, repairs, renovations, or facility services that do not have a specific contract or agreement with the military provided they have a non-speculative supporting relationship, association with, or direct connection to the military realignment.

The FY 2021 NDAA’s H-2B provision may apply, for example, to H-2B workers performing construction, repairs, renovations, or facility services or labor at a civilian parking garage, where evidence is presented that the garage was built near a U.S. military base specifically to accommodate increased parking demands related to military realignment projects, even though it is not likely directly connected to or associated with the military realignment. In such an instance, the performance of such services or labor may be considered to support the military realignment.

Conversely, a petitioner for labor or services performed at a civilian parking garage built to accommodate customers at local retail establishments may not be able to show a supporting relationship to the military realignment based solely on a claim that some of those retail customers could include military personnel. In this case, the claimed relationship between the labor or services and the military realignment could be considered incidental or tangential, even if there is a likelihood that some persons engaged in the military realignment project would, on a small island like Guam, use the parking garage on occasion.

Infrastructure improvements, such as utility or transportation systems, are likely to qualify for employment of H-2B workers under the NDAA exemption. In such cases, the petitioner must establish through presentation of facts and submission of supporting documentation that the contract or subcontract for such labor or services supports the military realignment on Guam or in the CNMI, given the small geographic areas of Guam and the CNMI and the inherent need for integrated utility and transportation system on the islands. This is the case even if the contract or subcontract for such improvements is not directly with the U.S. military.

Exemption for Contracts or Subcontracts Adversely Affected by the Military Realignment

The FY 2021 NDAA further extends the exemption to include contracts or subcontracts for labor or services for construction, repairs, renovations, or facility services that are “adversely affected by” the military realignment, in addition to those that are supporting, associated with, or directly connected to the realignment. 

Contracts or subcontracts that are “adversely affected by” the military realignment might include projects for which the military realignment has caused a loss of business income or a negative impact on the availability of necessary labor or resources that is not purely speculative (that is, based on assertions with no documentation to support the claim).

For example, if a construction company provides a detailed attestation or other evidence establishing that several welders from its permanent staff have left the company to take positions on the military base and that, as a result, its contracts have been delayed or cancelled, this may demonstrate a nonspeculative adverse effect.

On the other hand, if a restaurant generally asserts that its inability to find workers necessary to undertake its current contracts or fulfill new contracts or subcontracts relates to the military realignment and provides only its TLC from Guam Department of Labor (Guam DOL) and a copy of a broad study about the effect of the realignment on the Guam labor market, this may not be sufficient to demonstrate an adverse effect on the petitioner by the military realignment.

Eligibility for NDAA Exemption Must Involve Military Realignment Occurring on Guam and CNMI

Under the FY 2021 NDAA, to qualify for the NDAA exemption, the direct connection, support, association, or adverse effect cannot relate to just any military activity on Guam or in the CNMI; it must be with “the military realignment occurring on Guam and the [CNMI].”[12]

The term “military realignment” refers generally to the planned realignment of U.S. Marines from Okinawa, Japan to Guam, as well as other U.S. Department of Defense (DOD) force structure realignment in the Indo-Pacific region involving Guam and the CNMI stemming from DOD Records of Decision occurring in 2010 and 2015.

Guam has a long-established U.S. military presence (including U.S. Air Force and U.S. Navy bases) that predates this military realignment, including ongoing activities that are not related to the military realignment, and therefore would not be covered by the NDAA.

While some military activity on Guam or in the CNMI that is not specifically related to the U.S. Marines may come under the term “the military realignment,” distinguishing U.S. military activity that is “the realignment” as compared to other military activity on Guam or in the CNMI may be complex for USCIS officers.

The distinction essentially requires a determination of general military function, and the broader strategic goal supported by a particular contract or subcontract is unlikely to be evident from the contract documents themselves. As such, input from the DOD is particularly important to support petitions claiming eligibility as supporting, associated with, or directly connected to the military realignment, as further described below.[13]

3. NDAA Exemption Eligibility for Health Care Workers

For health care workers, consistent with the FY 2021 NDAA, USCIS requires petitioners requesting the NDAA temporary need exemption to demonstrate that all services or labor to be performed by H-2B nonimmigrants on Guam or in the CNMI are:

  • As a health care worker (such as a nurse, physician assistant, or allied health professional), but excluding graduates of medical schools coming to Guam or the CNMI to perform service or labor as members of the medical profession;[14] and

  • At a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.

4. Documentation and Evidence

All petitioners that request their cases to be considered for eligibility under the NDAA H-2B temporary need exemption should submit a cover sheet indicating “NDAA Eligible” in large, bold letters along with their H-2B petition to facilitate efficient adjudication.

In addition, USCIS suggests petitioners submit the following documentation, if applicable.

If claiming eligibility directly connected to, supporting, or associated with the military realignment, petitioners should submit:

  • A copy of any applicable agreement, contract, or subcontract for services or labor for construction, repairs, renovations, or facility services or other probative evidence that each requested H-2B position meets the requirement that the worker will perform services or labor on Guam or in the CNMI;[15]

  • A signed statement from an official within the DOD (including a branch of the U.S. armed forces) providing the DOD view regarding whether the applicable agreement, contract, or subcontract is directly connected to, supporting, or associated with the military realignment. The DOD statement may also explain that the services or labor are performed under a federally funded agreement, if applicable. If this DOD statement is not provided, the petitioner should establish why it could not be obtained; and

  • Any other relevant documentation demonstrating that services or labor will be performed under a federally funded agreement to support priority consideration of NDAA eligibility, if applicable, if that information is not included in the DOD statement.

If claiming eligibility due to an adverse effect related to the military realignment on Guam and in the CNMI, the petitioner should submit:

  • A copy of any applicable agreement, contract, or subcontract for services or labor for construction, repairs, renovations, or facility services, as well as other probative evidence that each requested H-2B position meets the requirement that the worker will perform services or labor on Guam or in the CNMI; and

  • A detailed explanation, accompanied by any relevant supporting evidence, regarding the adverse effect of the military realignment.[16] USCIS may consider any relevant documentation to show such effect, including but not limited to a detailed attestation articulating a nonspeculative relationship between the military realignment and the claimed adverse effect. While an approved TLC is sufficient to show a general shortage of available and qualified U.S. workers on Guam (or in the CNMI), USCIS does not consider it sufficient to demonstrate that the military realignment occurring on Guam and in the CNMI has adversely affected the petitioner.  

If claiming eligibility for healthcare workers, the petitioner should submit:

  • A signed statement on company letterhead from a corporate officer or facility administrator having authority to speak on behalf of the company or facility providing its TRICARE or other applicable provider number and attesting to the fact that it jointly serves members of the U.S. armed forces, dependents, and civilians. The statement should, to the extent possible, also include the number of members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI that the petitioning facility has served in the preceding 12 months. USCIS uses this information to evaluate the use of the NDAA provision.

USCIS recognizes the limitations imposed upon health care facilities by patient confidentiality restrictions. Accordingly, USCIS does not expect and does not generally request that a petitioner submit facility records that would support that it is jointly serving members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI.

5. Adjudication

Petitioners bear the burden of establishing eligibility for the NDAA exemption.[17] USCIS officers determine whether the petitioner has met its burden of demonstrating eligibility under the NDAA based on the totality of the evidence. When applicable, officers should give appropriate weight to the signed statement from the DOD, particularly with respect to determining the relationship between the services or labor and the military realignment, as opposed to other U.S. military activity. However, such statement is not determinative.

Under the FY 2021 NDAA, priority is given to contracts or subcontracts for services or labor for federally funded projects directly connected to, supporting, or associated with the military realignment on Guam and in the CNMI.[18]

Accordingly, a petition demonstrating that the applicable services or labor are performed under a federally funded agreement, contract, or subcontract has made a prima facie case that it qualifies for the NDAA exemption. This means that USCIS may accept, without any further evidence or inquiry, that the petitioner has established eligibility under the NDAA and is exempted from showing temporary need.

USCIS officers, however, still must determine whether the petition meets other H-2B requirements, such as an H-2B worker’s eligibility for H-2B status, and in their discretion, may request additional evidence that the petition qualifies for the NDAA exemption.

If the USCIS officer determines that the case does not meet the NDAA exemption, then he or she should adjudicate the petition under existing H-2B policy and regulations, including the requirement that the petitioner establish temporary need.

For cases meeting the NDAA exemption regarding H-2B petitions for workers on Guam or in the CNMI, USCIS officers do not perform an analysis of whether the need for the H-2B position is temporary under otherwise applicable law and regulations.

USCIS officers, however, continue routine case processing, including reviewing whether the petition includes an approved TLC issued by the U.S. Department of Labor (DOL) or Guam DOL, as appropriate.[19] As provided by DHS regulations, DOL or Guam DOL may approve a TLC for a period of up to 1 year, with the possibility for extension, for H-2B employment on  Guam or in the CNMI, respectively.[20]

6. Decision

If the officer determines that the petitioner has provided sufficient evidence to show that the beneficiary meets the applicable eligibility requirements, the officer should approve the petition. Otherwise, the officer should request additional evidence or deny the petition.[21] If USCIS denies a petition, the petitioner may appeal the decision to the USCIS Administrative Appeals Office.

Period of Admission for H-2B Workers on Guam or in the CNMI Under the NDAA

Before December 31, 2023,[22] an H-2B worker whose services or labor meets the NDAA exemption may be admitted for a consecutive period of up to 3 years, depending on the specific need stated in the H-2B petition.[23] Thereafter, he or she may again apply for admission under the NDAA exemption or as an H-2B worker in general after residing and being physically present outside the United States for the immediately preceding 3 months.[24]

Because the provisions of the NDAA end on December 30, 2023, petitions with employment start dates on or after December 31, 2023 are subject to adjudication under the law and regulations that apply to the H-2B program at that time.

B. Reserved

Footnotes


[^ 1] The general statutory numerical limitations that apply to other H-2B workers are not applicable to special handling situations discussed in this section.

[^ 2] See Pub. L. 110-229 (PDF) (May 8, 2008).

[^ 3] See INA 214(g)(1)(B). See Section 702 of CNRA, Pub. L. 110-229 (PDF), 122 Stat. 754, 854 (May 8, 2008) (codified at 48 U.S.C. 1806(b)).

[^ 4] See Section 10 of the Consolidated and Further Continuing Appropriations Act of 2015, Pub. L. 113-235 (PDF), 128 Stat. 2130, 2134 (December 16, 2014) (codified at 48 U.S.C. 1806(d)).

[^ 5] See Section 3 of the Northern Mariana Islands U.S. Workforce Act of 2018, Pub. L. 115-218 (PDF), 132 Stat. 1547, 1547 (July 24, 2018).

[^ 6] See Section 1049 of the FY 2018 NDAA, Pub. L. 115-91 (PDF), 131 Stat. 1283, 1558 (December 12, 2017) (amending 48 U.S.C. 1806(b)). To qualify for H-2B classification, the petitioner generally must establish its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.

[^ 7] See Section 1045 of the FY 2019 NDAA, Pub. L. 115-232 (PDF), 132 Stat. 1636, 1959 (August 13, 2018) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).

[^ 8] Specifically, the FY 2019 provided temporary need exemption eligibility in two scenarios: (1) to perform service or labor on Guam or in the CNMI pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, or associated with, the military realignment occurring on Guam and in the CNMI; or (2) to perform service or labor as a health care worker (such as a nurse, physician assistant, or allied health professional) at a facility that jointly serves members of the U.S. armed forces, dependents, and civilians on Guam or in the CNMI, subject to the education, training, licensing, and other requirements of INA 212(a)(5)(C), as applicable, except that this clause may not be construed to include graduates of medical schools coming to Guam or the CNMI to perform service or labor as members of the medical profession.

[^ 9] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).

[^ 10] The FY 2021 NDAA did not amend the exemption eligibility for health care workers, which was initially provided in the FY 2019 NDAA. Eligibility for the health care worker temporary need exemption does not extend to members of the medical profession, as outlined in the prohibition under INA 101(a)(15)(H)(ii)(b). USCIS interprets this prohibition to include physicians.

[^ 11] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)). For more information about the priority given to services or labor performed under a contract or subcontract for federally funded military projects, see Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)] and Subsection 5, Adjudication [2 USCIS-PM I.11(A)(5)].

[^ 12] See Section 9502 of the FY 2021 NDAA, Pub. L. 116-283 (PDF) (January 1, 2021) (amending Section 6(b) of Pub. L. 94-241 (PDF) (March 24, 1976), as amended and codified at 48 U.S.C. 1806(b)).

[^ 13] See Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].

[^ 14] USCIS interprets the NDAA limitation regarding the exclusion of “graduates of medical schools coming to Guam or the Commonwealth to perform service or labor as members of the medical profession” consistently with its long-standing interpretation of the general statutory limitation on the classification, to include physicians. See INA 101(a)(15)(H)(ii)(b) (“but this clause shall not apply to graduates of medical schools coming to the United States to perform services as members of the medical profession”).

[^ 15] The contract or subcontract must be directly connected to, supporting, or associated with the military realignment occurring on Guam or in the CNMI. This must be under an agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, supporting, or associated with the military realignment occurring on Guam or in the CNMI. Contracts or subcontracts showing that the labor or services are performed under a federally funded agreement may qualify for priority treatment under the NDAA. For more information, see Subsection 2, FY 2021 NDAA Exemption Eligibility Involving Military Realignment [2 USCIS-PM I.11(A)(2)] and Subsection 5, Adjudication [2 USCIS-PM I.11(A)(5)].

[^ 16] This may include, but is not limited to, loss of business income or impact on the availability of necessary labor or resources. Supporting documentation may include, but is not limited to, evidence that workers have left the project to take work related to the military realignment.

[^ 17] See INA 291.

[^ 18] For eligibility information, see Subsection 2, FY 2021 NDAA Exemption Eligibility Involving Military Realignment [2 USCIS-PM I.11(A)(2)]. For information regarding documentation and evidence as it relates to the priority given to services or labor performed under a contract or subcontract for federally funded military projects, see Subsection 4, Documentation and Evidence [2 USCIS-PM I.11(A)(4)].

[^ 19] Routine case processing also includes adjudication of H-2B petitions filed on behalf of beneficiaries who are nationals of a country not listed on the H-2A or H-2B Eligible Countries List. See 8 CFR 214.2(h)(6)(i)(E)(2).

[^ 20] See 8 CFR 214.2(h)(6)(v).

[^ 21] For more information, see Chapter 9, Adjudication of Temporary Nonagricultural Worker (H-2B) Petitions [2 USCIS-PM I.9].

[^ 22] Because the FY 2019 NDAA exemption from the H-2B temporary need requirement expires on December 31, 2023, the last eligible requested employment start date is December 30, 2023.

[^ 23] Any single grant of a period of admission is limited to the validity period of the TLC, which may not exceed 1 year. If eligible, the worker may obtain extensions of stay for a total period of admission of up to 3 years.

[^ 24] See 8 CFR 214.2(h)(13)(iv).

Current as of July 26, 2021