H2B Visa

Frequently Asked Questions & Answers

1. What is H2B visa?

The H-2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence.

Note: This visa is also used for entertainers going on a tour, for film workers or professional minor league players

2. What is a 'one-time occurrence'?

The petitioner must establish that the petitioner has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.

Check My Eligibility

3. What is a 'seasonal need'?

The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees.

4. What is a 'peak-load need'?

The petitioner must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation.

5. What is an 'intermittent need'?

The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

6. What is the responsibility of the employer in establishing 'temporary need' for H-2B workers?

The employer has the burden of establishing that the need for H-2B workers is temporary and is either a one time, seasonal, peak, or intermittent need in his/her application. Documentation might include contracts, lists of projects and timeframes, as well as narrative explanations.

Note: The existence of a single short term contract in an industry such as construction does not, by itself, document temporary need if the nature of the industry is for long term projects which may have many individual contracts for portions of the overall project. The employer must demonstrate its need is temporary, and is either a one time, seasonal, peak load, or intermittent need.

7. Is an H-2B visa issued only for temporary jobs?

The nature of the job itself is irrelevant. What is relevant is whether the employer’s need is truly temporary. In some situations, the employer’s need may create a temporary job opportunity in an employment situation which may otherwise have been permanent in nature.

Note: A temporary job opportunity could be created because the incumbent (who holds the position of permanent factory foreman) was injured or is otherwise unavailable for a period of less than one year, or additional workers are needed during a busy period. The temporary period must have a clear beginning and end.

8. What privileges do I enjoy on H2B visas?

On H-2B visas you may:

  1. Enter the U.S. for a temporary work and enjoy all employee benefits
  2. Get your dependents to stay with you in the U.S.
  3. Travel freely in and out of the U.S. on H-2B visa
  4. Change jobs if you can show a new job offer

9. What are the limitations of H-2B visa?

The limitations of H-2B visa are:

  1. The job must be temporary in nature and the need is for one year or less. The employer’s need may not be ongoing or continuous
  2. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need
  3. H-2B time counts whether you are in the U.S. or abroad
  4. H-2B dependents may not work in the U.S.

10. What are the requirements for H-2B visa employer?

The requirements are:

  1. The job must be temporary in nature and the need is for one year or less. The employer’s need may not be ongoing or continuous
  2. An U.S. employer must file an application requesting temporary foreign nonagricultural labor certification
  3. The employer may be an individual proprietorship, a partnership or a corporation.
  4. In some Limited circumstances, An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members

Note: Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation and area. Employers are advised that it is desirable to make an independent determination of factors such as prevailing wages and employer practices before filing an application.

11. What are the requirements for H-2B visa holder?

To qualify for H-2B visa, you must:

  1. Have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work
  2. Show proof of an intent to return to your home country on expiration of the visa

Note: H-2B certification is issued to the employer, not the worker, is not transferable from one employer to another or from one worker to another. Certification is issued only for a specific job opportunity, for a specific number of workers, and for a specific employment period.

12. How long can I stay in the U.S. on H2B visa?

The H-2B Labor Certification application is valid for the period of employment indicated on the Form ETA-750A. However, the validity period may not exceed one year. You may stay for two more years with two one year increments. With initial one year and two one year extensions you can stay for three years on this visa.

13. Can I stay longer than a year on H-2B visa?

The employer’s need may generally be only for one year. However, the need, under the ‘extraordinary circumstances’ provision, may ultimately be longer than one year if the extended need could not be anticipated at the time of application.

Note: An example might be the case of a hurricane that destroyed a large bridge. It will take 11 months to replace the bridge. After the application is approved for this ‘one time’ occurrence, the employer demonstrates that the work cannot be completed in 11 months based on circumstances which did not exist at the time the employer first petitioned for the foreign national. The work will now take 14 months. The employer would file another application for the three additional months.

14. Can I extend my stay on H-2B visa?

Yes, you may apply for Extension of Stay on H-2B visa. The employer may apply for re-certification for an additional two years with one year extensions, but on each new application, the employer must justify the reason for the H-2B extension request. You may also extend by changing to a new employer who had completed the temporary labor certification.

15. Can I change status on H-2B?

Yes, you may apply for change of status on H-2B visa. If you are changing the job or employer (like H-2B to H-2A), have your new employer file Form I-129, Petition for Nonimmigrant Worker at the USCIS Regional Service Center with jurisdiction over your residence.

Note: H-2B certification is issued to the employer, not the worker, is not transferable from one employer to another or from one worker to another. Certification is issued only for a specific job opportunity, for a specific number of workers, and for a specific employment period.

16. Can I study on H-2B visa?

Yes, you may study on H-2B visa. However, you may not join a full length program like an F-1. You may take up a few credits at a university when they do not harm the primary interest of your H-2B visa.

17. Can I bring my dependents on H-2B visa?

Yes, you may bring your dependents while on H-2B visa. Your spouse and unmarried children are entitled to an H-4 visa and they may stay as long as you have a valid H-2B status.

18. Can my dependents work on H-4 visa?

No, they may not work on H-4 dependent visa. They have to apply for appropriate Work Visa.

19. Can my dependents study on H-4 visa?

Yes, they may study on H-4 visa. They do not have to apply for separate F-1 student visa. They may study on the same dependent H-4 visa.

20. Are there any travel restrictions on H-2B visa?

There are no travel restrictions on H-2B visa. You may travel as many times as required before the expiry of your H-2B status. The USCIS also does not impose any time limit on your stay abroad.

21. What is the processing time for H-2B visa?

The employer should file the H-2B petition at least 60 days but not more than 120 days before the worker is needed. As this is a lengthy process, the employer must allow enough processing time for delays and correction of application errors.

Note:The DOL will return H-2B certification applications filed more than 120 days before the worker is needed

22. What is the general procedure to obtain a temporary Labor Certification?

A temporary Labor Certification must be obtained from the U.S. Department of Labor to employ temporary or seasonal workers. Before the USCIS can approve an employer’s petition for such workers, the employer must file an application (Form ETA-9142) with the DOL stating that there are not sufficient workers who are able, willing, qualified, and available and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.

23. What is the validity of temporary Labor Certification?

A temporary labor certification is:

  1. Valid only for the number of foreign nationals, the occupation, the area of employment, the specific activity, the period of time, and the employer specified in the certification
  2. Limited to one employer’s specific job, opportunity; it may not be transferred from one employer to another

24. Can H-2B labor certification applications filed by job contractors be certified as temporary jobs?

In the vast majority of cases, H-2B applications filed by job contractors may not be approved since they are for permanent jobs. The temporary or permanent nature of the work involved in such applications is determined by examining the job contractor’s need for the workers, rather than the needs of its customers. When examined from this perspective, the need for the workers involved in applications filed by job shops is almost always a permanent need. A job contractor, that is in the business of supplying the labor needs to one or more customers, has a permanent need for such workers outside the scope of the particular agreement, and should be informed that he/she may wish to consider filing a permanent application.

Note: In order to meet its burden of proof, such a contractor would need to establish that it had not previously employed workers to perform this particular type of service and that there was no possibility that it would do so again after the performance of the particular contract. Under this scenario, a job contractor might be able to qualify for H-2B status based on the work being either a peak load or a one-time occurrence.

25. When should the Labor Certification Application for H-2B visa be filed?

A complete DOL Form ETA-9142, Application for Alien Labor Certification, must be filed at least 60 days before the first date on which H2B workers are needed. however, recruitment for the labor certification can not be started more than 120 days before the workers are needed. If it is accepted or amended within the required time frame and complies with the regulations, the certifying officer will make a certification determination 30 days before the date on which the workers are needed.

Note: In emergency situations the regional administrator may waive the time period specified, provided the regional administrator has an opportunity to obtain sufficient labor market information on an expedited basis on the U.S. worker availability. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived.

26. How will I know when my H-2B visa application is accepted for consideration?

If your application is accepted for consideration, the Certifying Officer will notify the employer in writing.

27. How will I know if my H-2B visa application is not considered?

If your application is not accepted, the Certifying Officer will notify the employer in writing. The Certifying Officer’s will issue a Request for Information (RFI) which will:

  1. State why the employer’s application is not acceptable
  2. State changes necessary for the application to be accepted for consideration
  3. Allow the employer Seven calendar days to resubmit the application
  4. Outline procedures employer may use to appeal the RA’s nonacceptance

28. Can my employer re-submit the amended application for H-2B visa?

Yes, your employer may resubmit the H-2B visa application with modifications. In such instances, the employer should file the amended application within five days of the regional administrator’s notice of non-acceptance. The amended application must be filed with the regional administrator (with a copy to the SWA).

29. Under what circumstances can my H-2B visa application be denied?

An H-2B visa application may be denied when:

  1. The application did not meet the required time frames (except in emergency situations) and there is not enough time to test the availability of U.S. workers
  2. Enough able, willing, and qualified eligible U.S. workers are available to fill all the employer’s job opportunities
  3. The employer has not satisfactorily complied with positive recruitment requirements
  4. The employer, since the application was accepted for consideration, has adversely affected the wages, working conditions, or benefits of U.S. workers
  5. After appropriate notice and opportunity for a hearing, the Certifying Officer determines that the employer has substantially violated a material term or condition of a previous H-2B certification within the last two years

30. Where should I submit the H-2B visa application?

If you are:

  1. In a lawful status in the U.S., submit the visa application to a USCIS Service Center in the U.S.
  2. Outside the U.S., submit the visa application to the American Consulate where you reside

31. What if my Labor Certification Application is denied, can I still file with USCIS?

No, the regulations require that a approved labor certification be attached to the I-129.

32. Can I apply for a Green Card while on H-2B status?

Yes, you may apply for Green Card while on H-2B visa. You may attain an immigrant status in the U.S. through the Family Based Immigration. If you have close relatives who are U.S. citizens or U.S. permanent residents, the relatives may file an immigration petition for you as the beneficiary. Close relatives, as defined by immigration law, include parents, unmarried minor children and spouses.

33. What are the requirements that should be met by the employer of H-2B work visa applicants?

  1. Recruitment: The employer must have made positive efforts to engage U.S. workers. This means an active effort, including newspaper advertising in areas of expected labor supply. This must be an effort independent of and in addition to the efforts of the SWA. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers
  2. Wages: The wage or rate of pay must be the same for U.S. workers and H-2B workers. The hourly rate must also be at least as high as the applicable federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher.