Nonimmigrant workers in the Territory of Guam

(a) In general The following shall apply in the case of an alien who seeks admission to Guam under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)): (1) An employer must file a petition with the Secretary for endorsement of the alien's eligibility for classification as a H–2B temporary employee before the alien may apply for a visa or seek admission to the United States. (2) In the Territory of Guam, an employer petitioning for H–2B temporary employees shall apply for a temporary labor certification with the Governor of Guam (as described in 8 CFR 214.2 unless otherwise contradicted by this Act) prior to filing a petition. (3) The Secretary will conclude the following when presented with an employer petition containing an approved temporary labor certification issued by the Governor of Guam: (A) United States workers capable of performing the temporary services or labor as described in the temporary labor certification are not available. (B) The alien's employment will not adversely affect the wages and working conditions of similarly employed United States workers. (C) The employer has a one-time occurrence, seasonal need, peakload need, intermittent need, or other qualified need for temporary employees. A completed employer petition for H–2B temporary employees on Guam shall be approved by the Secretary so long as the petition includes an approved temporary labor certification issued by the Governor of Guam within the last 365 days. (4) An approved temporary labor certification issued by the Governor of Guam may only be invalidated if it is determined by a court of law that the temporary labor certification request involved fraud, willful misrepresentation, or gross misconduct.