H2B Visa

The H-2B visa is a type of nonimmigrant visa which allows employers in the U.S. to bring eligible workers to the U.S. to fill temporary non-agricultural jobs of a temporary (intermittent, peak load need, or one time occurrence) or seasonal nature.

Note: The establishes a means for non-agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. This visa can also used for entertainers going on a tour, for film workers or professional minor league players, and other skilled artists who aren’t eligible for an O-1 or P visa.

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.

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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.

“Seasonal” also does not necessarily have to be tied to the 4 seasons. Seasonal could be “legal seasons” like fishing season, or hunting season or tied to events or holidays like “Christmas Season”.

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.

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.

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.

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.

The benefits of an H-2B visa for a foreign national include:

1. Enter the U.S. for a temporary work and enjoy all employee benefits
2. H-2B holders can bring their spouse and children under 21 to stay with them in the U.S. in H-4 status. H-4 holders can attend school, through university, in the U.S. without restriction Travel freely in and out of the U.S. on H-2B visa during the validity of your visa
3. Change jobs if you can show a new job offer

The limitations of H-2B visa include:

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.

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. A 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.

To qualify for the 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.

The H-2B Labor Certification application is valid for the period of employment indicated on the Form ETA Form ETA-9142B Application for Alien Labor Certification. However, in no event shall the validity period exceed 1 year. Extensions may be granted for qualifying employment in 1-year increments. The maximum period of stay in H-2A status is 3 years.

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 can file another application for the three additional months.

Yes, the employer may apply for an Extension of Stay of the 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 has completed the temporary labor certification process

No, the maximum period of stay in H-2A status is 3 years. However, you can “reset” the 3-year period if you can show you were physically absent from the U.S. for an uninterrupted period of at least 60 days.

When filing a new H-2B petition, the employer must provide evidence that the beneficiary was outside the U.S. for the entire 60-day period.

No, short trips to the U.S. as a business or tourist visitor will not reset the 60 days. However, any time spent in the U.S. will not count towards the required 60 days.

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 with USCIS.

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.

Yes, you may study on an H-2B visa, however, your course of study must be incidental to your H-2B status.

Yes, you may bring your dependents on H-4 visas. Your spouse and unmarried children under 21 are entitled to H-4 status as long as you maintain valid H-2B status.

No, your dependents may not work while in H-4 dependent status. They can apply for an appropriate work visa if they wish to work in the U.S.

Yes, your dependents may study while in H-4 status, including full-time enrollment, from elementary education through university or graduate education.

If your child(ren) is turning 21 and are in school, they should change status to F-1 or obtain an F-1 visa so they can continue their education past the age of 21.

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.

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

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-9142B) 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.

The employer must also obtain a Prevailing Wage (ETA Form 9141) from DOL’s National Prevailing Wage Center, preferably at least 60 days before the determination is needed before the labor certification can be submitted.

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

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, 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.

A complete DOL Form ETA-9142B, 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 DOL may expedite the time periods specified. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived

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, USCIS determines that the employer has substantially violated a material term or condition of a previous H-2B, has not been willing to comply with site visits, and/or it has been found that the petitioner has committed certain labor or other legal violations or misused the H-2 programs.

Once the appropriate certifications are obtained, the Form I-129, Petitioner for Nonimmigrant Worker must be submitted to USCIS with the temporary labor certification and required evidence.

The employer must file the petition with the appropriate USCIS lockbox.

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

Yes, you may apply for a Green Card while on the H-2A visa.

You may apply for lawful permanent residence in the U.S. through the following options:

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.

Employment Based Immigration(Labor Certification): You may find an employer who is willing to file a Labor Certificate for you with the DOL.

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.

Employers must notify USCIS within 2 workdays when:

1. A Worker has not reported for work within 5 work days of the employment start date or the employer’s start date, whichever is later;
2. A worker has stopped reporting for work for 5 consecutive work days without the employer’s consent;
3. The worker is terminated before completing the services; and/or
4. The worker finishes the labor or services more than 30 days earlier than the H-2A end date.