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When Is an H-2B Visa Appropriate?

When an American employer needs workers to provide labor or services and cannot find the appropriate labor force in the United States, that company may apply for H-2B visas, which allow non-citizen workers into the country temporarily to work that job.

What Is an H-2B Visa?

H-2B visas are only issued to non-agricultural workers, and only temporarily. (Agricultural workers are admitted under H-2A visas.) This option is commonly used in the landscaping, forestry, hospitality, recreational, and seafood industries. The program is run by U.S. Citizenship and Immigration Services (USCIS). The initial application must be made by the employer or agent, and once approved, the worker is allowed to apply for the H-2B visa through a U.S. Embassy or Consulate abroad, or directly at the border through U.S. Customs and Border Protection.

There is a limit, or “cap,” on how many workers are granted H-2B visas in a fiscal year, and it has increased steadily since the program began. The current limit is 66,000 foreign nationals per fiscal year. Certain H-2B workers are not subject to this cap, including workers who extend their stay, change employers, or change the terms and conditions of their employment. Certain others are exempted altogether, including fish roe processors, technicians, or supervisors; and workers in the Northern Mariana Islands or Guam until December 31, 2019.

In February 2018, USCIS reported an “unprecedented” surge in applications, and that the amount of workers will likely exceed the available H-2B visas. Because of these caps and the changing political and immigration climate, we strongly recommend you begin the application process immediately if you need H-2B workers. Returning workers no longer qualify for special consideration, as Congress failed to renew the Save Our Small and Seasonal Business Act, which exempted returning H-2B workers from the annual cap.

What Is “Temporary” Work?

H-2B visas are only granted on a temporary-work basis. For H-2B visas, an employer’s need for labor or services is considered “temporary” based on:

  • One-time need. You must prove either that the job did not exist before, and will be completely done once your temporary worker performs it, OR that the job opening is permanent but has a temporary need to be filled by a non-citizen worker.
  • Seasonal need. You must prove that the need for workers is tied to a season of the year, and of a recurring nature. It’s important to note you cannot claim seasonal need if the job is unpredictable, subject to change, or simply a vacation for your permanent employees.
  • Peakload need. You must prove there is temporarily more work than your U.S. workers can handle. Please note that the temporary workers cannot be added to staff for an ongoing labor or service need.
  • Intermittent need. You must prove you have not previously had permanent workers performing the same job, and that you only occasionally need workers to perform the job for short periods of time.

Seasonal, peakload, and intermittent need are generally limited to nine months or fewer. One-time occurrence remains available for a three-year timeframe. Any H-2B worker’s spouse and unmarried children under 21 may also be admitted to the United States with H-4 status.

A worker’s H-2B visa can be extended in one-year increments depending on employer need, but the maximum stay is three years. After, the worker must leave and remain outside the United States for three months before seeking readmission.

What Are the Requirements?

To have non-citizen workers qualify for H-2B visas, an employer must prove:

  • There are no U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

H-2B employers are also required to advertise the job to U.S. workers prior to opening them up to foreign nationals.

Before filling out the application, the employer must petition the U.S. Department of Labor for a valid temporary labor certification for each worker. After receiving this certification, the employer must submit it alongside Form I-129, Petition for Nonimmigrant Worker, to USCIS. Multiple workers may be named on the same petition, if they are performing the same labor for the same time frame. If you request H-2B workers from both eligible and non-eligible countries, it is best to file two separate Form I-129 petitions. The current filing fee is $460.

Please note, an employer or agent cannot accept any fee or compensation from a non-citizen in return for employment.

Need Immigration Help?

For over 60 years, the attorneys at Pollack, Pollack, Isaac & DeCicco, LLP, have helped individuals, families, and businesses with immigration issues throughout the United States. You can ask questions about H-2Bs and nonimmigrant visas by contacting our reputable New York immigration lawyers online or by calling 646-779-2896.

 

Immigration News from ILW.COM

FAQs
  • Q: My employer wants to sponsor me to get a green card – can they?

    If you entered the United States without visa and are working here without legal documentation, your employer may be able to help you. But it’s important to understand that just because your employer wants to help doesn’t mean you will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including your prior history (and your family’s prior history) in the United States. So it’s good that your employer wants to help but the first step is to call us for an interview so we can understand more about your situation.

  • Q: How can I get a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, you need a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get you a work permit, but you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit you have to make an application for legal status in this country on some other basis. Don’t believe any other lawyer or person who tells you it’s an easy thing to get a work permit. Call us for an interview and we can explain to you how the process and immigration laws in the United States really work.

  • Q:  Can I apply for deferred action now?

    As a result of the injunction issued by the District Court in Texas, applications for the expanded DACA program and DAPA are currently on hold. The Department of Homeland Security is not currently accepting requests for the expansion of DACA, as originally planned. Until further notice, it has suspended the plan to accept requests for DAPA.

  • Q: Does the new executive order or court injunction change Deferred Action protection under existing DACA?

    The Court’s order does not affect the existing DACA. Individuals may continue to come forward and request initial grant of DACA or renewal of DACA pursuant to the guidelines established in 2012. This ruling only delays the start of DAPA and the expansion of DACA.

  • Q:  Who can I contact for more help or information?

    It’s important that you speak with a qualified attorney who can explain all the options and issues relating to your immigration status.  Do not take advice about your immigration case from a notary public or an immigration consultant.  The U.S. immigration laws and rules are very complicated and many people take advantage of undocumented immigrants, making promises and charging money without providing honest advice.  Contact only a qualified immigration lawyer for legal advice about your case. If you encounter 'notarios' who offer legal advice without a license, report it.

  • Q; What should I do now?

    You can begin preparing now! Even though DHS is not currently accepting applications under DAPA or the expanded DACA programs, individuals who are potentially eligible for Deferred Action status should begin preparing their applications now. It is very likely that the Texas decision will be overturned and there will probably be a rush of applicants when that happens. Individuals should be ready with their applications and start now by gathering the necessary documentation and seeking good counsel to give themselves the best chance for success and to avoid potential problems.

  • Q: I haven’t seen my mother since I came to the U.S. 10 years ago. Can I apply for a visa so she can join me here?

    If you are a U.S. citizen or have a Green Card, then yes, you can apply for a visa for your family members. But the process can take a long of time, depending on your own status. If you’re a U.S. citizen, it might take 8 months to a year to process the application. The waiting time will be much longer if you’re a Green Card holder. Generally, the sooner you start the process the better, so contact one of our attorneys now to get started or browse our site to learn more about the different types of visas available for family members.

  • Q: My grandma is sick back home – can I go visit her?

    Whether you can travel abroad depends on your immigration status. If you have been granted DACA or if you have a Green Card in hand – you still must ask for advanced permission in order to leave the country. This is called advanced parole. Obtaining advance parole is relatively inexpensive. But it is not without risk, because there is really no way to guarantee that you will be able to return. Your return is ultimately within the discretion of the authorities at the point of your reentry to the U.S.

  • Q: Can our company sponsor an employee to get a green card?

    If one of your employees entered the United States without visa and is working here without legal documentation, you may be able to help this person obtain legal immigration status. This doesn’t necessarily mean they will be able to obtain a green card. The process for obtaining a green card is complicated and depends on many factors, including a person’s prior history (and their family’s prior history) in the United States. It’s definitely helpful to their case if you, as their employer, are willing to help, but the first step is to have the employee call us for an interview so we can understand more about their situation.

  • Q: What is a work permit?

    A work permit is a common way of referring to an Employment Authorization Document (EAD), which is issued by the Immigration Service (which is part of the U.S. Department of Homeland Security). Under U.S. law, an employee needs a work permit or EAD in order to become a legal employee of a U.S. company. Many lawyers will promise to get undocumented immigrants work permit. But you have to be careful about this. The catch is that you can’t simply apply for a work permit or EAD in itself. In order to apply for a work permit a person must make an application for legal status in this country on some other basis. So don’t let your employees get gulled into believing that it’s easy to get a work permit by some lawyer or hustler on the street corner. Call us for an interview and so we can explain to your employees how the process and the immigration laws in the United States really work.

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