H-2B Visas

The H-2B nonimmigrant visa 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 and there are no qualified, able, or willing U.S. workers available for the job. Note that this visa is not available for "temporary" agencies or other work placement agencies.

The H-2B visa is subject to a statutory numerical cap meaning that the number of H-2B visas available is limited. 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). Unused visa numbers do not carry over to the next fiscal year. The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification. A foreign worker is eligible for the H-2B Visa provided that they have a valid job offer from a US employer to perform temporary or seasonal non-agricultural work and that the foreign worker intend to return to your home country upon the expiration of the visa.

In order to petition for a foreign worker, the employer must meet the following requirements:

• Present the foreign worker(s) with a job offer of a temporary or seasonal nature;
• Demonstrate that there is only a temporary need for the type of services or labor to be performed by the foreign worker(s);
• Demonstrate that there is an absence of U.S. workers who are able, willing, qualified, and available to perform the temporary work;
• Demonstrate that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed American workers;
• The foreign worker must have a foreign residence outside of the United States that he or she has no intention of abandoning;
• The employer must submit a valid temporary labor certification from the Department of Labor along with the H-2B petition.

As designated by the Department of Homeland Security nationals from the following countries are eligible to participate in the H-2B program effective January 18, 2015. Foreign nationals from countries in bold are eligible to participate in the H-2B program effective January 18, 2016.

What about nationals that are absent from the list? Nationals that do not appear on the list above may only be designated as beneficiaries of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the best interest of the Unites States to admit the beneficiary on the H-2B visa program.

Benefits of the H-2B visa include but are not limited to the following:

• H-2B workers can enter the U.S. for temporary work and enjoy all employee benefits;
• H-2B workers can bring their dependents with them to live in the U.S. throughout their duration of stay;
• Spouses and/or children under the age of 21 can accompany the foreign worker to the U.S. by applying for an H-4 visa;
• The H-2B worker can travel freely outside of the U.S. on this visa once approved;
• The H-2B worker can change jobs if they can demonstrate the new job offer and have a new petition approved by the new employer;

A U.S. employer must file USCIS Form I-129 Petition for Nonimmigrant Worker with the H supplement on behalf of the foreign worker(s). An individual cannot file such a visa on their own accord. The first step for the employer is to file a temporary labor certification with the U.S. Department of Labor at least 45 days before the day of the foreign worker’s intended employment. This is required for several reasons 1) to determine the availability of U.S. workers 2) to determine if the employment of the foreign worker will adversely affect the job opportunities, wages, and working conditions of similarly employed workers in the United States and 3) to determine the temporary nature of the employer’s need for the foreign worker’s services or labor. The employer’s need is temporary if the employer can demonstrate that the services or labor are either a one-time occurrence, based on seasonal need, based on peak-load need or intermittent need. An H-2B certification is valid for up to 364 days. Once the temporary labor certification application is approved by the Department of Labor, the second step is for the Petitioner to file USCIS Form I-129 along with the H supplement, and the original signed labor certification. If the foreign worker is in the United States in lawful status, the Petitioner should request a Change/Extension of status on USCIS Form I-129 on behalf of the Beneficiary. The Beneficiary will not be able to travel outside of the United States while the petition is pending. If the Beneficiary is outside of the United States the foreign worker must apply for the H-2B visa at a U.S. Embassy or Consulate abroad once the I-129 is approved.

Such visas are issued for a period of up to one year. Extensions of H-2B visas may be granted for a total of two additional years, however, after the second extension is sought, the foreign worker must remain outside of the United States for an uninterrupted period of three months before applying for re-admission as an H-2B non-immigrant. There are certain instances where the foreign workers time spent outside of the United States interrupts the authorized stay of the H-2B worker and does not count toward the 3 year limit. For assistance with this issue please contact an attorney. An extension may be authorized for the validity of the labor certification or for a period of up to one year. The employer is required to seek the certification with the DOL regarding the continued unavailability of the United States workers during each extension that is sought.