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H-2B Visa for Unskilled Temporary Worker

JACThe H-2B Visa program provides the basis for employers to bring temporary workers to the United States every year to work in seasonal occupations, from ski resort workers in Colorado to amusement park employees in Florida. Approximately 66,000 seasonal workers come to the US every year on H2B visas.

Who is eligible?

The H2B visa is available to employers of foreign workers but not involving work in the agricultural field. This visa is only available for work that is seasonal and temporary in nature, which means:

  • The work involves a recurring seasonal need;
  • The work involves an intermittent need;
  • The employer faces a problem with peak-load requirements; and
  • One time occurrence.

As part of the visa process, the employer must also prove that there are no unemployed domestic workers willing or able to do the work. This is established through the state’s employment agency using a labor certification process. This process requires a recruitment campaign, including advertising in a local newspaper for available temporary workers.

Visa validity
The duration of the visa is limited to the employer’s need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years — but subject to close scrutiny from the immigration authorities.

Filing the I-129 Petition
In order to be considered as a nonimmigrant under the above classifications, the prospective employer must file a Petition on Form I-129 with the United States Bureau of Citizenship and Immigration Services (USCIS). Once approved, the employer is sent a notice of approval, Form I-797.

Applying for the Visa
Once the employer’s petition has been granted, a prospective worker outside of the U.S. may apply under the petition for an H-2B visa with the local US consulate.
Each worker’s H-2B visa application includes:

  • Form DS-156, Application for Nonimmigrant Visa;
  • Form DS-157 (required only for male applicants from 16 and 45 years old);
  • A valid passport;
  • One passport-style photo; and
  • Evidence of ties to the home country (family, property, current occupation, etc.).  As with any other nonimmigrant visa, the Consulate will want to see that each applicant has ties to their home country such that he or she will return home after their seasonal employment in the U.S. ends.

If the prospective worker is already in the US and is changing from one nonimmigrant status to another, a visa is not required. However, if the worker leaves the US and wants to re-enter, a visa may be required.

Entry into the US
Applicants should be aware that a visa does not guarantee entry into the United States. The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file
Petitions should be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment will begin, because the petition processing and visa issuance may not be completed before work is to begin.

Bringing family members
Spouses of H-2B visa holder or an unmarried child under 21 years of age of H-2B visa holder are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2B visa holder. H-4 visa holders are not permitted to work in the US.

Petitioning for multiple workers
It is possible, in some cases, for employers to file blanket petitions (that is, one petition for several individual employees).

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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