H-2B Visa - Temporary Non-Agricultural Workers

The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). As of November 2006, the cap for the first six months of fiscal year 2007 had been reached. Workers already in H-2B status and returning H-2B workers do not count towards the cap.

The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. In the case of the H-2B certification, the U.S. Department of Labor (“DOL”) decision is only an advisory to USCIS. The certification request is made by the employer using Form ETA 750, and multiple openings of the same job and rate of pay may be on the same application. The certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another.

Qualifying Criteria

Either skilled or unskilled workers may be employed on an H-2B visa.  The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers.  The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories.

Who is eligible to file an H-2B Visa Petition?

U.S. employers and agents are allowed to petition for temporary H-2B workers.  U.S. agents are allowed to file petitions for self-employed aliens, cases where there will be multiple employers, and cases involving foreign employers.  When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment.  The agent must also provide a complete itinerary of the planned employment. 

When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. 

When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent’s authority to act on behalf of the employer.  In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under U.S. immigration law.

How long can a nonimmigrant remain in the U.S. on an H-2B visa?

The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers.  The maximum authorized period of stay is one year, and the visa may be extended for a total of three years.  However, extension applications are closely scrutinized as this is a visa category based upon temporary or seasonal need.

One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary.  The DOL recognizes four situations in which there is a temporary need for workers: 

1.              Recurring seasonal need

2.              Intermittent need

3.              Peak-load need

4.              Need based on a one-time occurrence 

Not only must the employer promise to employ the worker for a limited period of time, but the employer must verify that its need for the worker is temporary. There is no set rule for how long a season can be, but most DOL offices will consider seasons of more than nine or ten months a year to actually be continuous employment and not seasonal employment.

Process for Filing

To allow time for processing delays and correction of application errors, the employer should file the H-2B visa petition at least 60 days, but not more than 120 days, before the worker is needed.

Step One:

1. The prospective employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) serving the area of proposed employment.
2. The SWA instructs the employer on recruitment requirements, appropriateness of the wages and working conditions offered and refers qualified candidates to the employer for interviews.
3. The employer prepares a recruitment report summarizing the results of the effort. This recruitment report includes names and addresses of applicants and lawful reasons for not hiring the interviewees.
4. When evaluated, applications for certification shall be forwarded by the local SWA to the appropriate National Processing Center (NPC).
5. The DOL NPC certifying officer will grant certification if he/she finds that qualified persons in the U.S. are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
6. The certification or notice of denial thereof is to be used by the employer to support its visa petition filed with the USCIS. Because the DOL decision is only an advisory to USCIS, there is no appeal process within the DOL for denial for H-2B applications. Such appeals must be filed with the USCIS.

The temporary labor certification process normally takes about two months.

Step Two:

Once the certification is granted, the Employer is eligible to file the H-2B visa petition with the appropriate USCIS Regional Service Center. The petition packet should including the following:

If the H-2B worker is already in the U.S. in valid nonimmigrant status when the Petition is approved and requested a change of status on the Form I-129, the USCIS will send a notice of approval with a detachable I-94 Arrival/Departure Record. A new visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter.

If the H-2B worker is outside the U.S. when the Petition is approved, the worker must apply for a visa at the U.S. Consulate. Be sure to check the U.S. Consulate’s for their specific procedures regarding visa applications and interviews. They will also list the visa application fees and current forms to submit.

Upon entry, the H-2B worker will be given a stay that ends when the need for the worker ends, as stated in the nonimmigrant visa petition. The worker may come to the U.S. ten days before the authorized work period and stay ten days later.

Note: If the H-2B worker is terminated early, the employer is liable for paying reasonable transportation costs home.

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