How to change employers on H-2B visas?
If you’ve been working in the United States as an H-2B visa holder and you’ve changed employers, you might be wondering if you’ll run into any problems with immigration. Not sure what to do next?
Let’s explore everything you need to know about the H-2B visa.
What is the H-2B Visa?
The H-2B Visa is a non-agricultural worker visa, which allows foreign laborers to temporarily work in the U.S. The worker must already have a prearranged job with a U.S. employer.
H-2B certification is controlled by the Employment and Training Administration (ETA) under the Department of Labor (DOL), and the U.S. Citizenship and Immigration Services (USCIS) under the Department of Homeland Security (DHS).
How Long Can an H-2B Visa Holder Stay in the United States?
H-2B Visas can be issued for one year at a time and are renewable for up to three years, after which the visa holder must return to his home country for at least three months before receiving another H-2B Visa.
Exceptions can be made for longer stays if it is determined by officials that an extended stay is necessary to complete an ongoing project or fulfill an agreement between the employer and employee.
How Many H-2B Visas are Available Every Year?
About 66,000 H-2B visas are available for grant each fiscal year, according to the U.S. Citizenship and Immigration Services (USCIS) website. And these are divided equally between the first half of the fiscal year (October 1 to March 31) and the second half (April 1 to September 30) with about 33,000 each.
In March 2018, however, Congress passed the spending bill which increased the cap on H-2B visas to almost double the original number.
Who Qualifies for an H-2B Visa?
H-2B visas are for temporary, nonagricultural, skilled, and unskilled workers. The H-2B visa program is for foreign nationals coming to the U.S. to perform temporary services or labor on a one-time, seasonal, peak-load, or intermittent basis.
What is a one-time event in the H-2B context?
Employers must prove that the company hasn’t hired workers for the service or the job, and that the company doesn’t have to hire employees for the service in the future as a result.
This is a one-time event meaning that the holder had never hired foreign workers in the past and had not planned on employing them. The foreign worker will serve only temporary employment.
What is a seasonal need?
Employer specifies whether or not the time of work or service will repeat and is generally guided by seasons or occurrences. It’s up to petitioners to determine what portions of the year do not require additional labor.
The period during which employees work and cannot take holidays must be flexible and unchangeable based on the circumstances.
What is a peak-load need?
Peak loads need translates to employers requiring temporary workers to support the permanent workforce when peak demand is high and temporary workers cannot become permanently employed.
What is an intermittent need?
Intermittent needs are when an employer is unable to provide temporary work and employs no permanent or full-time workers.
Privileges of H-2B Visa Holders
H-2B visa holders are allowed the following privileges:
- Work temporarily in the United States and utilize any employee benefits including the prevailing wage rate.
- Travel freely into and out of the United States
- Reside with their dependents while in the United States
- Accept job opportunities
Please note that the H-2B visa is not transferrable to a new employer. If an employee seeks a temporary job offer they’ll need a new H-2B visa. Also, the new employer must file form ETA 750 to commence the visa process anew.
As a precondition, H-2B workers must not have pathways to obtain citizenship or a green card. Since they are non-permanent U.S. residents, they can acquire a green card through diversity immigrant visas, employment, or family.
How to Apply for H-2B workers as an Employer?
The petition for an H-2B worker starts with the employer submitting a temporary labor certification. This is an acknowledgment by the Department of Labor as proof that there are no qualified prospective workers in the U.S for the position.
Next, the employer completes a Petition for Non Immigrant Workers, also known as Form I-129. This is a petition requesting an H-2B visa on behalf of a prospective foreign temporary worker. The petition is then filed with the United States Citizenship and Immigration Services (USCIS).
The petitioner must provide evidence that the H-2B visa falls into any of the following categories:
- Intermittent need
- Peak-load need or
- Seasonal need
The H-2B visa must also be a one-time occurrence.
Employers typically provide contracts with a detailed description, written explanations, outlined plans and timelines, and any other pertinent documents.
For more information and guidance about your USCIS regional service center, contact us here.
How to apply as an H-2B worker?
A prospective H-2B worker must meet the following prerequisites to launch a new petition:
- Furnish a copy of Notice of Approval of H-2B Petition from the employer. The petition must be acceded to before the foreign worker is considered for an H-2B visa.
- The foreign nationals must be citizens of eligible foreign countries. Check the complete list here.
- Provide proof of ongoing relations with their home country. This goes to show their likelihood to return home after visa expiry.
- Fill out all the required government documents, including the Application for Nonimmigrant Visa or Form DS-156. Male adults aged between 16 and 45 must fill out the Supplemental SIV Chief of Mission Application or form DS-157.
- Prospective applicants for nonimmigrant visas must also provide other relevant documentation and fees. These might include:
- A passport-style photo
- A foreign passport
- Application fees
Application fees for a non-immigrant worker seeking a visa fluctuates but it stands at around $190.
Can H-2B Change Employer?
A common question by most H-2B visa holders is whether they can change employers. This is critical because the validity of the H 2B visa relies on their continued employment with their first employer. As part of the working conditions, nonimmigrant visa holders cannot change employers.
However, temporary workers can lawfully switch from one employer to another in certain circumstances. Here are the steps involved:
Step 1: Find an employer with certification from a foreign labor certifying officer.
To ascertain this, you must request the employer for an updated Foreign Labor Certification Status. This means that the new employer is authorized to employ non-permanent workers by the United States Department of Labor.
Ask the new employer for Foreign Labor Certification issued by the U.S. Department of Labor. H 2B workers can also search for eligible employers here. This database keeps an up to date list of all H 2B worker registered employers in the U.S.
Step 2: Submission of form I-129 to the USCIS by the new employer
After securing employment from a qualified employer, the new employer must submit the petition requesting the admission of a nonimmigrant worker to the USCIS.
Ordinarily, H-2B visa holders cannot begin work immediately until the USCIS okays the petition to change employers. Still, there are some exceptions to this rule and H 2B workers seeking to change employers can start working before the employment start date.
When can an H-2B visa holder begin employment as Form I-129 is pending with the United States Citizenship and Immigration Services?
The USCIS is very strict about the exception for new employer’s extension. The Department of Homeland Security (DHS) issued a temporary rule allowing temporary labor certification for workers to begin employment before the USCIS approves the petition.
However, this exception only covers a pending petition received on or after May 25, 2021, but not later than 180 days of the received date.
The Department of Homeland Security and Department of Labor passed this temporary rule to increase H-2B nonimmigrant visa holders for the year 2021.
The administration also hoped to provide portability flexibility for foreign workers already in the country to begin work immediately with a new employer after the USCIS receives Form I-129 and before its approval.
However, if the USCIS denies the petition, it reserves the powers to terminate the worker’s H-2B visa 15 days after the denial decision date.
So what can we do for you?
The process of changing H 2B employers can be daunting because of the small window and complicated procedure. It’s in your best interests to hire an immigration attorney to guide you through the entire process.
Richard Herman, Esq and his team of seasoned immigration lawyers will offer a guiding hand if you want to change H 2B employers.
Give us a call today and book your appointment.
Frequently asked questions
How long can an H 2B visa holder stay in the United States?
Applicants must remain on the US passport for the employment period listed on Form ETA 750. The first period is usually twelve months. Extensions may take up to three months.
Can I become a student on the H 2B visa?
Yeah! Holders of an H2B visa can complete recreational studies for periods that do not interfere with their temporary jobs but can be engaged in full-time study.
Can my stay be longer than 12 months on the H 2B visa?
In cases of extraordinary circumstances, a company may request a temporary worker extension. All extensions are rated on merit by the court.
Can my dependents join me in the U.S. on the H 2B visa?
Yeah! Dependent spouses and married children under 21 years are allowed on visas and may be joined for an additional period of time.
Can you change jobs on a work visa?
“H-1A visa transfers” is a misnomer because the worker visa is not transferable between two companies. However, employees with a visa can change jobs during their stay.
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