H2-B Non-Immigrant Visa

OVERVIEW

The H2B Non-immigrant visa permits employers to hire foreign workers to come to the United States to perform temporary [1](i.e., less than one year) nonagricultural work. The employer's temporary need for the services or labor must be either a:

  • One-time Occurrence where the employer has not employed workers to perform the services in the past and will not need them in the future; or
    requires a worker for a temporary event of short duration that is usually handled by a permanent employee, such as an illness or leave of absence);
  • Seasonal need for services that are traditionally and predictably tied to a season of the year by any event or pattern and is of a recurring nature;
  • Peakload need to supplement a sponsoring employer's permanent staff on a temporary basis due to seasonal or short-term demand; or
  • Intermittent need by a sponsoring employer for temporary workers for occasional or intermittent short periods.


THE PROCESS

Before a sponsoring employer can obtain an H2-B visa, it must obtain a certification from the U.S. Department of Labor ("USDOL") that there are no qualified and willing U.S. workers available for the job being sponsored, and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed. In order to prove this, the sponsoring employer must:

  • Place a ten (10) day job order with the State which offers at least the prevailing wage and is not overly restrictive so as to exclude U.S. workers.
  • Place a three day ad in a newspaper of general circulation or a professional or trade journal if more appropriate for the job.
  • If appropriate, document why unions are unable to refer qualified U.S. workers.

    The sponsoring employer must then summarize the recruitment and explain the lawful job related reason(s) for not hiring each U.S. worker who applied.

    The temporary labor certification is similar to, but less extensive and time consuming, than permanent labor certification for green card purposes. It can be filed for multiple openings of the same job and rate of pay on one application. As such, no information is required about the foreign national being sponsored. The certification can be issued for up to one year, and can be extended in yearly increments for an additional two years. However, the sponsoring employer must conduct new recruitment for each extension.

    Once the USDOL certifies the position(s) being sponsored, the sponsoring employer files an H2B Petition for Nonimmigrant Worker with the U.S. Citizenship and Immigration Services ("USCIS")[2]. Upon approval, the foreign national, assuming they are overseas must then apply for a visa from the U.S. State Department at the U.S. Embassy or consulate located nearest the foreign national's place of residence.

    While H2B applications are processed on a "fast track" to expedite the entry of the foreign workers, employers are advised to file requests for H2B certifications as early as possible. However, such applications cannot be filed more than 120 days before certification is needed

    EXAMPLES OF H2-B USES

    Examples of successful use of the H2B category include:

    • A peak load petition for chefs at a resort hotel which could document seasonal occupancy variations.
    • Short-term design and testing work for engineers during a peak production phase of a project (even though the employer may have regularly employed permanent workers for the same job). In such a case the sponsoring employer should provide evidence that the temporary workers would not become part of the employer's regular operation.
    • For the ski season, ski resorts have been able to qualify ski instructors, motel janitors, nannies, lift attendants, and restaurant workers.
    • Domestic workers such as housekeepers, child monitors or live-in attendants for the terminally ill.
    • Entertainers or athletes who do not qualify for "O" or "P" visas.
    • To provide training to other employees (such as a specialty chef).
    • To organize a business operation.


    [1] The requirement that the nature of the H2B work be temporary makes it so that a sponsoring employer cannot sponsor a foreign national for both an H2B temporary worker certification and a green card permanent labor certification.[2] As with H1B visas, a sponsoring employer is liable for reasonable return transportation costs if it dismisses an H2B worker early.



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