H-2B visas permit employers to bring foreign workers to the United States to work on a temporary basis in non-agricultural positions. The H-2B visa was specifically designed to fill positions when there is a lack of qualified U.S. workers.
H-2B workers work in a variety of industries, with many workers in the seafood and landscaping industries. Nannies may also qualify for H-2B qualification in certain circumstances, please see our PAGE for more information.
In order to qualify for H-2B classification, en employer must prove that:
There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work; and
The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary.
Only citizens of approved countries may apply for H-2B visa as and there is a yearly cap!
For H-2B purposes, temporary need is defined in 4 possible categories:
One-Time Occurrence. Employer must demonstrate that that it has:
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Seasonal Need. Employer must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature
Peakload Need – An employer must show that it:
Regularly employs permanent workers to perform the services or labor at the place of employment;
Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
The temporary additions to staff will not become part of the employer’s regular operation.
Intermittent Need – An employer must show that it:
Has not employed permanent or full-time workers to perform the services or labor; and
Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Part 1: Temporary Labor Certification
Before filing for the H-2B with USCIS, the employer must first receive a temporary labor certification from the Department of Labor. This step in the process ensures that there are no U.S. workers available for the position. As of April 2015, the process and requirements for the Temporary Labor Certification have changed and the process now involves extra steps and advertising requirements. For more information please visit our BLOG.
Part 2: Employer Submits Form I-129 to USCIS
After temporary labor certification, the employer submits for I-129 to USCIS. This petition seeks approval for the specific worker and must demonstrate the prospective employee’s qualifications.
Part 2: Employer Submits Form I-129 to USCIS
After the I-129 is approved, the foreign employee must apply for his or her visa. If the employee is outside of the U.S., he or she will apply through a local U.S. Embassy or Consulate. There is also an option for the employee to directly seek admission to the U.S. with Customs and Border Patrol at a U.S. port of entry.
H-2B classifications are typically granted for up to the period of time authorized on the temporary labor certification. However, the maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant.
Spouses and Children
A lawful spouse and children under the age of 21 may enter the United States in H-4 status as dependent’s of an H-2B worker. These H-4 holders are eligible to study in the U.S. but may not seek employment authorization.
In addition to the initial H-2B requirements for USCIS and DOL, H-2B employers are required to maintain records and notify USCIS regarding certain changes in employment. It is very important that any employer that employer H-2B workers understand and comply with these requirements. Please contact the attorneys at ilexlaw, PLLC if you are an H-2B employer seeking help with navigating these requirements.
How can Skylex help?
The experienced immigration attorneys at Skylex assist clients routinely with H-2B classification and related matters. We also are constantly keeping up with the progress of the new H-2 requirements to better serve our clients. Please contact us today for your free consultation!
Please visit H-1B Visa page to read more about the H-1B Visa.
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