H-2B Visa (Seasonal Workers or Trainers)
H-2B visa is suitable for the following categories of people:
- Foreign athletes, trainers, or artists with a job offer from a U.S. employer
- Skilled workers in crafts and trades who are able to perform tasks for which no U.S. workers are available
- U.S. companies hiring foreign nationals to perform temporary work for which no U.S. workers are available
The H-2B visa nonimmigrant program allows employers to hire foreign workers to come temporarily to the U.S. and do temporary nonagricultural services or labor on a one-time, seasonal, peak load, or intermittent basis. While a limited amount of H-2B Visas are issued each year, the visa is nonetheless useful. The H-2B visa enables U.S. businesses, such as hotels, construction companies, and landscapers, to fill temporary needs for nonimmigrant workers. This visa is also occasionally used to hire professional basketball or hockey players. Many individuals who are unable to obtain an O or P Visa decide to apply for this visa instead. The visa is not self-petitioned, which means you will need an employer to sponsor you. Your spouse and unmarried children under the age of 21 may join you in the U.S. under the H-4 status. Dependents are not permitted to work unless they personally qualify for a work visa.
H-2B Visa Classification
The H-2B visa classification requires the United States Secretary of Homeland Security to consult with appropriate agencies before admitting H-2B non-immigrants. Homeland Security regulations need that, except for Guam, the petitioner first apply for a temporary labor certification from the United States Secretary of Labor indicating that:
- There are not enough U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at that place the foreign worker is to perform the work.
- The employment of the foreign worker will not adversely pretend the wages and working conditions of similarly employed U.S. workers. The Department of Labor will review and process all H-2B applications on a first in, first out basis.
- If the need for the prospective worker’s services or labor is temporary, regardless of whether the inherent job can be described as temporary. The employer’s need is conceptualized temporary if it is a:
- Seasonal Demand – A petitioner arrogating a seasonal need must show that the service or labor for which it searches workers is:
- Of a recurring nature.
- Traditionally evened to a season of the year by an event or pattern.
Note: Employment is not seasonal if the period during which the service or labor is needed is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees.
One-time occurrence – A petitioner arrogating a one-time occurrence must show that it has:
- An employment condition that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- 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.
Peak Load Need – A petitioner arrogating a peak load need must show that it:
- Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand.
- Regularly employs permanent workers to perform the services or labor at the place of employment.
Intermittent Need – A petitioner arrogating an intermittent demand must show that:
- It has not employed permanent or full-time workers to perform the services or labor.
- Occasionally or intermittently demands temporary workers to perform services or labor for short periods.
Note: H-2B petitioners must also offer a single valid 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)
H-2B Application Steps
- Step 1: Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam). See “Foreign Labor Certification, Department of Labor” and “Foreign Labor Certification, Guam Department of Labor” for further information.
- Step 2: After getting a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted with Form I-129. (See Form I-129 for additional instruction for filing requirements.)
- Step 3: After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:
- Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, and then look for admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry.
- Immediately look for entree to the United States in H-2B classification with CBP at a U.S. interface of entry.
Note: Employers requesting employment in a position that is let off from the U.S. Department of Labor’s temporary labor certification application filing requirement may omit step 1 in the H-2B process.
List of H-2B Eligible Countries
The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Designation of eligible countries is valid for one year from publication.
Effective Jan. 18, 2013, nationals from the following countries are eligible to participate in the H-2B program:
Papua New Guinea
Note: If you request H-2B workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays.
USCIS may allow 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 and the maximum period of stay in H-2B classification is 3 years. A new, valid temporary labor certification covering the requested time must accompany each extension request. 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.
Exception: Certain periods of time spent outside of the United States may “disturb” an H-2B worker’s authorized stay and not count toward the 3-year limit. See “Calculating Interrupted Stay for H-2 Classifications” for additional information.
How to Notify USCIS
Notification should be made via email or mail to the USCIS Service Center that approved the I-129 petition. Otherwise, email notification is strongly recommended to ensure timely notification.
Source of Information: www.uscis.gov