H-2B EMPLOYMENT VISA

What Is An H-2B Visa?

The H-2B visa program allows U.S. employers to bring in temporary non-agricultural workers. However, if you’re an employer, you must meet specific regulatory requirements – and you may need an immigration attorney’s help.

The H visa category is designed to help businesses bring in temporary agricultural and non-agricultural workers. Specifically, the H-2B visa is for non-agricultural workers who are coming to perform temporary jobs here in the United States.

A qualified U.S. employer or U.S. agent must file a petition with U.S. Citizenship and Immigration Services before it can hire someone on an H-2B visa.

Are There Other Types of Visas Under the H-2 Category?

In addition to the H-2B visa, the U.S. government offers H-2A and H-3 visas. The H-2A visa is for temporary or seasonal work. The H-3 visa is training in any field (other than graduate medical education or training) that isn’t available in a person’s home country or for exchange visitor training programs in certain fields.

Who Qualifies for H-2B Classification?

To qualify for H-2B classification, a U.S. employer or U.S. agent must show that:

  • There aren’t enough U.S. workers to perform the temporary work
  • Employing H-2B workers won’t negatively affect U.S. workers’ wages or working conditions
  • The job is temporary, even if it isn’t classified as “temporary”
  • The employer or agent has a single, valid temporary labor certification from the U.S. Department of Labor

One-Time Occurrence and Seasonal Need

A temporary job is a one-time occurrence or something seasonal. It can also be one classified as a peakload need or an intermittent need.

One-Time Occurrence Jobs

A business that petitions based on a job that’s a one-time occurrence must show that:

  • A temporary event of short duration has created the need for a temporary worker
  • It has not employed workers to perform the same service or labor in the past, and it won’t need workers to perform the services or labor in the future

Seasonal Jobs

If a business claims seasonal need, it has to show that the service or labor it’s hiring for is:

  • Traditionally tied to a season
  • Of a recurring nature

That means if an employer is hiring to harvest a particular fruit that can only be harvested in spring, that employer may qualify to apply under a seasonal need.

Peakload Need Jobs

An employer that claims a peakload need must show that it:

  • Regularly hires permanent workers to perform the same services or labor
  • Must temporarily increase its permanent staff due to a seasonal or short-term demand
  • Temporary staff members will not become a regular part of operations

For example, if a factory producing medical supplies during a national health crisis needs to hire more workers to meet emergency demands, that company may be able to claim peakload need.

Intermittent Need Jobs

A company that wants to hire people based on an intermittent need must show that it:

  • Has not hired permanent or full-time workers to perform the same services or labor
  • Only occasionally or intermittently needs temporary workers to perform services or labor, and that it needs the workers for short periods of time

Your immigration attorney can help you decide what type of petition is right for you.

H-2B Visa Frequently Asked Questions

H-2B visas can be difficult to get – but they’re often misunderstood. Here are a few of the questions we regularly hear about these visas:

  1. Is there a cap on the number of H-2B visas available?
  2. How does the H-2B visa program work?
  3. Which countries are on the H-2B Eligible Countries list?
  4. How long can someone stay in the U.S. on an H-2B visa?
  5. Can you apply for your own H-2B visa?
  6. What happens to the families of H-2B workers?
  7. What forms do you need to file to petition for an H-2B visa?
  8. How much does it cost to file for an H-2B visa?
  9. What additional paperwork do I need to provide?

Here’s a closer look at each.

1. Is there a cap on the number of H-2B visas available?

There is a limit on the number of H-2B visas available each year. The current cap is 66,000 workers, with 33,000 of those workers beginning employment in the first half of the fiscal year (October 1 through March 31), and the remaining half of the workers beginning employment in the last half of the fiscal year (April 1 through September 30). The government staggers H-2B visas this way to provide enough for seasonal businesses.

After the cap is reached, USCIS can still consider petitions for people who are exempt from the cap.

2. How does the H-2B visa program work?

There are three steps in the H-2B visa process. Here’s a look at each.

Step 1: Filing a temporary labor certification application with the Department of Labor

The U.S. employer or agent must apply for and receive a temporary labor certification with the U.S. Department of Labor.

Step 2: Submitting Form I-129 to USCIS

The employer or agent must submit Form I-129 to USCIS with an approved temporary labor certification and wait for approval.

Step 3: Prospective workers apply

Prospective workers living outside the United States apply for an H-2B visa and admission.

3. Which countries are on the H-2B Eligible Countries list?

While this list is subject to change, the H-2B Eligible Countries list is located here. It’s important to note that if a prospective employee is from a country that isn’t on the list, he or she may still qualify for this type of visa – but only if the Secretary of Homeland Security determines it’s in the U.S.’s bets interest.

4. How long can someone stay in the U.S. on an H-2B visa?

USCIS can grant an H-2B visa for the time specified and authorized on the temporary labor certification. In some cases, employers can extend it up to a year at a time – but not always. The maximum stay for a person in the country on an H-2B visa is 3 years.

A person who has had an H-2B visa for three years must leave the U.S. and remain out of the country for at least 3 months, uninterrupted, before he or she can seek readmission.

5. Can you apply for your own H-2B visa?

Workers can apply for their own H-2B visas, but only if they’re interested in working for a particular employer and that employer has received a temporary labor certification from the U.S. Department of Labor.

Prospective workers must either apply for an H-2B visa with the U.S. Department of State at a U.S. Embassy or Consulate abroad or directly seek admission with a U.S. Customs and Border Protection at a U.S. port of entry.

If you’re applying with the U.S. Department of State at an embassy or consulate, you still have to seek admission with CBP. If an H-2B visa isn’t required, you can go directly to a port of entry.

Businesses and H-2B Visas

Because the process of applying for a temporary labor certification can be confusing and time-consuming, many companies hire immigration attorneys to help. This is true for both small and large businesses. If you know your company will need temporary workers, file your applications and petitions as early as possible.

6. What happens to the families of H-2B workers?

In many cases, family members of H-2B visa recipients can come to the U.S. However, only spouses and unmarried children under the age of 21 can apply. Family members must apply for H-4 nonimmigrant visas. People with H-4 nonimmigrant visas cannot work in the United States.

7. What forms do you need to file to petition for an H-2B visa?

As a business owner or U.S. agent, you must file two forms with two different agencies. First, you need to file for a temporary labor certification with the U.S. Department of Labor; second, you must file Form I-129 with U.S. Citizenship and Immigration Enforcement.

Temporary Labor Certification

In order for the Department of Labor to issue a temporary labor certification, it must determine that:

  • There aren’t enough U.S. workers qualified and available to perform the temporary job
  • Employing H-2B workers won’t have a negative impact on American workers

The employer must:

  • Have a valid FEIN
  • Have a place of business
  • Have a means by which it can be contacted for employment

The Department of Labor recommends registering at least 120 calendar days before the date of need. If possible, apply even earlier – you can put in an application up to 150 days before you need help. You must also obtain a prevailing wage determination at least 60 calendar days before you need help. (You can get that using the Application for Prevailing Wage Determination from the National Prevailing Wage Center, but if you hire an attorney, you don’t have to worry about any of this time-consuming work.) You must also file a job order and H-2B application between 75 and 90 days before you need help. You must also mail copies to other agencies.

Form I-129

You must file (or your attorney must file on your behalf) Form I-129, Petition for a Nonimmigrant Worker, with USCIS. If you fail to file this form, you cannot hire H-2B visa workers. You must include your temporary labor certification, if you have one and if one is necessary for your case. (Sometimes they’re not necessary, such as when you’re hiring Canadian musicians for short-term gigs.)

8. How much does it cost to file for an H-2B visa?

In addition to fees you may have to pay to prove you need temporary help, you’ll also have to pay a $460 filing fee with your Form I-429. Part of the fee is nonrefundable, no matter how USCIS decides in your H-2B visa case. (You can’t get your money back for biometric services or filing fees.)

Required Documentation

You must furnish required documents with your application. Failure to produce the appropriate documents can lead to a denial of your petition. These are the documents you may need, depending on your case:

  • The H Classification Supplement to Form I-129
  • An approved temporary labor certification
  • Evidence that each named beneficiary meets the minimum job requirements necessary (these requirements should be listed on the temporary labor certification, if applicable)
  • Evidence that shows the beneficiary maintained his or her status if the beneficiary is seeking a change of status or extension

Do You Need to Talk to a Lawyer About H-2B Visas?

If you’re an employer that needs help applying to bring in qualified H-2B visa workers, we can help. Call or message us today to schedule a consultation. We’ll be happy to help you explore your options.