H-2B Temporary Nonimmigrant Visa for Non-Agricultural Workers
The H-2B visa is a temporary nonimmigrant visa that allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.
Who May Qualify for H-2B Visa?
To qualify for H-2B nonimmigrant visa, the petitioner must establish that:
* There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
* The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
* Its need for the prospective workers services or labor is temporary, regardless of whether the underlying job can be described as temporary.
The employers need is considered temporary if it is a(n):
* one-time occurrence – A petitioner claiming a one-time occurrence must show 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 – A petitioner claiming a seasonal need 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.
Note: Employment is not seasonal if the period during which the service or labor is needed is:
Subject to change; or
Considered a vacation period for the employers permanent employees.
* peakload need – A petitioner claiming a peakload need 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 employers regular operation.
intermittent need – A petitioner claiming an intermittent need 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.
H-2B process requires the employer to go through a temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL). Employers requesting employment in a position that is exempt from the U.S. Department of Labors temporary labor certification application filing requirement may skip this part of the H-2B process.
Once the temporary labor certification application has been certified an Petition for Nonimmigrant Worker (I-129) has to be filed with the USCIS.
There is a statutory numerical limit, or cap, on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year. Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap
H-2B Eligible Countries List
H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program. Please check the USDOS or the USCIS website for the most up-to-dae and current list of H-2B Elgible Countries List.
Effective Jan. 18, 2014, nationals from the following countries are eligible to participate in the H-2B program:
Papua New Guinea
Period of Stay
Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. 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. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.
Family of H-2B Workers
Any H-2B workers spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.
Kindly contact our office for assistance in the preparation and filing of an H-2B petition for a temporary nonimmigrant non-agricultural worker.