INS Clarifies Previous Guidance on H-2B Adjudication Issues

U.S. Department of Justice Immigration and Naturalization Service

HQ 70/6.2.9

425 I Street NW
Washington, DC 20536

MEMORANDUM FOR: All Service Center Directors
All District Directors
All Officers-in-Charge
Director, Administrative Appeals Office

FROM: Thomas Cook
Acting Assistant Commissioner,
Office of Programs

SUBJECT: Clarification of Memo Dated July 15, 2001 Regarding Certain H-2B Adjudication Issues

The purpose of this memorandum is to clarify a memorandum dated July 15, 2001 that provided guidance to field officers involved in the adjudication of H-2B petitions. The initial memorandum addressed two issues, unnamed H-2B beneficiaries and the validity of H-2B employers. The initial memorandum stated that the filing of H-2B petitions with unmanned beneficiaries should be the exception, not the norm. This is not an accurate statement since employers in many businesses will never be able to provide the names of the intended beneficiaries. This memorandum modifies only the portion of the initial memorandum dealing with unnamed beneficiaries by indicating that Directors should require the H-2B petitioner to provide the business reason for not listing the names of the beneficiaries. This memorandum also clarifies that H-2B petitions may include both named and unnamed beneficiaries.

Unnamed H-2B Beneficiaries

The regulation at 8 CFR 214.2(h)(2)(ii) provides that non-agricultural petitions must include the names of beneficiaries at the time of filing. Under the H-2B classification, exceptions to this requirement may be granted in emergent situations involving multiple beneficiaries at the discretion of the director.

This office has not provided a specific definition of the term "emergent situations" to the field since the director on a case-by-case basis should make the decision. In general, the decision to allow unnamed beneficiaries on an H-2B petition should be based on valid business reasons as enumerated by the petitioner. The director should not grant the exception without evidence from the petitioner clearing describing the business reason(s) why the beneficiaries are unnamed. The director should not allow the filing of H-2B petitions with unnamed beneficiaries without a description of the business reason justifying unnamed beneficiaries on the petition. The petitioner's inability to recruit potential workers due to time restraints is a valid business reason for the purposes of this provision. Further, Service officers may rely totally on the verbal assertions of the petitioner in determining whether the petitioner has a valid business reason for not providing named beneficiaries.

This issue has become increasing more important since this office has begun to receive information that certain H-2B employers are now selling "unnamed beneficiary slots" on H-2B petitions to aliens. In many cases, these H-2B petitions are for nonexistent employment. It is suggested that Directors ensure that petitioners provide the business reason for not providing the names of beneficiaries on H-2B petitions.

Service officers are also reminded that named and unnamed beneficiaries may be included on the same H-2B petition.

Should you have any questions relating to this memorandum, please contact John W. Brown at 202-616-7435.