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.
- The job and the employer's
need must be one time, seasonal, peak load or intermittent;
- The job must be for less than
- There must be no qualified
and willing U.S. workers available for the job; and
- The employer will pay the
prevailing wage for the position.
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
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.
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:
Recurring seasonal need
Need based on a one-time
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
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.
- The prospective employer
files a completed Form ETA
750 in duplicate to the local State
Workforce Agency (SWA) serving the area of proposed employment.
- The SWA instructs the
employer on recruitment requirements, appropriateness of the wages and
working conditions offered and refers qualified candidates to the employer
- 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.
- When evaluated, applications
for certification shall be forwarded by the local SWA
to the appropriate National Processing Center (NPC).
- 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.
- 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.
temporary labor certification process normally takes about two months.
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
- Form I-129, Petition
for Non-Immigrant Worker
- Form I-129 H Supplement
- Filing fee
- A copy of the approved
Temporary Labor Certificate
- A letter of support from
- An application including
the workers' names and qualifications
- Proof that the worker meets
the minimum requirements for the position (employment letters, training
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.
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
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.
If the H-2B worker is terminated early, the employer is liable for paying
reasonable transportation costs home.
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