USCIS Issues Guidance on Exemption to the Temporary Need Requirement for Certain H-2B Workers in Guam and in the CNMI

USCIS provided guidance in its policy manual on the filing and adjudication of H-2B petitions that fall under §9502 of the National Defense Authorization Act for FY2021. The guidance, which relates to the military realignment-related exemption for petitioners of certain H-2B workers in Guam and the CNMI, is effective immediately. Comments are due June 14, 2021.

Policy Highlights

  • Explains that the exemption may be granted for certain contracts or subcontracts for labor or services required for performance of a contract or subcontract for construction, repairs, renovations, or facility services, provided they have a non-speculative supporting relationship to, association with, are adversely affected by, or have a direct connection to the military realignment, and provides non-exhaustive examples.
  • Interprets contracts or subcontracts for construction, repairs, renovations, or facility services that are “adversely affected by” the military realignment as including, but not limited to, 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). While an approved temporary labor certification (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.
  • Explains that a petition demonstrating that 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.

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Cite as AILA Doc. No. 21051430.

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