An H-2B visa allows employers to hire foreign workers to fill nonagricultural job positions temporarily. The temporary job must be a seasonal need, intermittent need, one-time occurrence or a peak load need.
However, the stay period of the H2B worker is temporarily defined, and it is outlined in the Temporary Labor Certificate(TLC).
Therefore, the H2B worker must exist in the US on the expiration of the period stated in the TLC with leverage of staying 10 days after the expiration before leaving the country or seeking an extension or change of nonimmigrant status.
Even if the worker applies for an extension, the same cannot exceed three to 3 years; at the expiration of the time, the Foreign worker would have to return to the home country for at least 3 months before seeking readmission to the US. The H2B visa is for “temporary” nonagricultural jobs, not permanent.
Although the H2B worker can change status from an H2B visa to migrant status. an H2B worker can become a lawful permanent resident.
An H-2B visa is a type of work visa that allows employers to hire temporary workers who are foreigners to fill temporary nonagricultural job positions.
The job must be temporary, that it must be seasonal, intermittent, need, and one-time occurrence. Also, the approval of the visa is dependent on the fact U.S. workers are not available for the job, therefore, the need for foreign workers.
Unless the employer’s need is a one-time occurrence, the foreign nationals will typically stay over one year except for the need warrants foreign employees to stay for up to three years.
How long can an H-2B visa holder stay in the United States?
In general, the stay period of H-2B visa holders is authorized by the USCIS on the Temporary Labor Certification. The H-2B classification allows for a maximum period of three years.
A person who has held H-2B nonimmigrant status for a total of three years must leave the United States for three months before applying for readmission as an H-2B nonimmigrant.
Suppose the worker was in the United States in H-2B status for 18 months or less.
In that case, their H-2B time is interrupted if they are outside the United States for at least 45 days but less than 3 months, whereas if the stay is more than 18 months but less than 3 years, the time is interrupted if they stay outside the U.S. is for at least 2 months but less than 3 months.
Can I change my status from an H2B visa to a green card?
- The H-2B visa is a nonimmigrant visa that is valid for a set period of time. It does not lead to permanent residence in the United States, but H-2B visa holders can apply for status adjustment from H2B visa to permanent resident.
- An H-2B visa holder may apply for a Green Card while on the H-2B visa. In addition, through Family-Based or employment-based visas, foreign nationals may obtain immigrant status in the United States.
- For example, suppose an H-2B worker has close relatives who are US citizens or permanent residents (parents, unmarried minor children, and spouses). In that case, the relatives can file an immigration petition as a beneficiary for the worker.
- For employment-based immigration, the H-2B visa holder is required to seek a permanent job.
Eligibility for Adjustment of Status application
The following are the general requirements for an H-2B visa holder to change status from an H-2B visa to a Green card :
- File Form I-485, Application to Register Permanent Residence or Adjust Status;
- Be inspected and admitted or paroled into the United States at the time of application;
- Be physically present in the United States at the time of application.
- Be qualified for an immigrant visa. You are qualified for an immigrant visa if an approved Form I-140 was filed on your behalf or pending or a Form I-485 filed in conjunction with Form I-140.
- Approval of Form I-485 by the USCIS, following the approval the temporary worker will have immediate access to an immigrant visa.
What is a Green card?
A green card allows a foreign national to work and live permanently in the US under US immigration law. An H-2B visa holder can become an immigrant via employment-based immigration.
The following are the employment-based (EB) categories:
Employment-Based Immigration First Preference (EB-1)
Foreign nationals of extraordinary ability, an outstanding professor or researcher, or a certain multinational executive or manager are eligible for EB-1 green cards
- The foreigner must demonstrate outstanding ability in the sciences, arts, education, business, or athletics.
- It is mandatory that the alien meets at least three of the criteria outlined by the USCIS to demonstrate a one-time achievement and evidence that they will continue to work in the field of expertise.
Criteria for evidencing the ability
- Receipt of lesser-known national or international prizes or awards for excellence
- Membership in professional organizations that expect outstanding performance from their members.
- Material about the foreigner published in professional publications or other major media.
- The alien has been asked to evaluate the work of others, either individually or as part of a panel.
- Foreigner’s significant original scientific, scholarly, artistic, athletic, or business contributions to the field.
- The foreign national must have authored scholarly articles in professional or major trade publications, as well as other major media
- Foreigner’s work has been shown in art exhibitions or showcases
- Leadership or critical role performance in prestigious organizations by the foreign worker
- Foreigner commands a high salary or other significantly higher remuneration in comparison to others in the field
- The foreigner must have attained commercial success in the performing arts
Outstanding Professors and Researchers
- The foreigner must have received international recognition for exceptional achievements in a specific academic field.
- In addition, the foreigner must have at least three years of experience in teaching or research in that academic area and be entering the United States to pursue tenure or tenure track teaching or a comparable research position at a university, the institution of higher learning or private employer.
- The foreigner is expected to meet at least two of the six criteria listed below and provide a job offer from a prospective employer. In addition, the employer must demonstrate documented accomplishments and the employment of at least three full-time researchers.
Criteria for an outstanding professor and researcher
- Receiving significant prizes or awards for exceptional achievement
- Membership in organizations that need members to demonstrate outstanding achievement.
- Published material about the noncitizen’s academic work in professional publications written by others.
- Participation as a judge of the work of others in the same or related academic field, either on a panel or individually.
- Original scientific or scholarly research contributions in the field must be demonstrated.
- Authorship of scholarly books or articles (in international academic journals) in the field
Multinational Executive or Manager
- The foreigner must have worked for at least one year outside the United States in the three years preceding the Petition or the most recent lawful nonimmigrant admission if already working for the U.S. petitioning employer.
- The U.S. petitioner must have been in business for at least one year, have a qualifying relationship with the entity the foreign national worked for outside the United States, and intend to employ the foreigner in a managerial or executive capacity.
The process of getting EB-1 green Cards
- File a Form I-140, Petition for Alien Worker, for yourself.
Outstanding Professors and Researchers/Multinational Manager or Executive
- The prospective employer in the United States will file Form I-140, Petition for Alien Worker.
- The new employer must demonstrate a continuing ability to pay the offered wage.
Family of EB-1 Visa Holder
If the EB-1 visa is approved, the spouse and unmarried children under 21 are eligible to apply for E-14 or E-15 immigrant status in the United States.
Note for the EB-1 visa; there is no need for a labor certification.
Employment-Based Immigration Second Preference EB-2
A foreign national of the professions with an advanced degree or equivalent, or a person with exceptional ability, is eligible for a second visa based on employment.
If the job requires an advanced degree, and the foreigner must have such a degree or its foreign equivalent and 5 years of work experience in that field.
Exceptional ability is defined as a level of expertise significantly above that normally encountered in the sciences, arts, or business.
Criteria are as follows, and at least three of them must be met:
- An Official academic record demonstrating that you have a degree or a similar award from an institution of learning in the field of exceptional ability.
- Letters from current or previous employers attesting to at least ten years of full-time experience in your field.
- A professional license or certification
- Proof of payment that foreigner has been paid for your exceptional ability.
- Affiliation with a professional organization (s)
- Recognition from peers, government entities, professional or business organizations for your achievements and significant contributions to the professional field
- Other forms of comparable proof of eligibility are also acceptable.
The process of getting EB-2 Green cards
- EB-2 petitions must typically be accompanied by a certified Application for Permanent Employment Certification on ETA Form 9089 from the Department of Labor (DOL).
- The employer must demonstrate an ability to pay the offered wage.
- The employer can request a waiver of this requirement in the national interest via the Petition filed with USCIS. The employer do not need to demonstrate an employer’s ability to pay a wage because the national interest waiver waives the job offer.
Note, In addition, the requirements specified on the labor certification must be met by the EB-2 petitioner.
Family of EB-2 Visa Holder
After Form I-140 is approved, the foreigner spouse and unmarried children under the age of 21 may be eligible to apply for admission to the United States in E-21 and E-22 immigrant status, respectively.
Employment-Based Immigration Third Preference EB-3:
Skilled workers, professionals, and other workers may apply for an EB-3 green card.
- Skilled workers are people whose jobs require at least two years of training or experience and are not temporary. Training may include relevant post-secondary education.
- Professionals are people whose jobs require at least a degree in the United States or a foreign equivalent degree and members of the professions.
- The other workers’ subcategory is for people who do unskilled labor that does not require more than two years of training, education, or experience, and it is not temporary.
Note that the application for an EB-3 green card, labor certification, and a permanent, full-time job offer is required.
Family of EB-3 Visa Holders
After the Petition’s approval, the dependent spouses and children under the age of 21 that are not married of the foreign workers may be eligible to apply for admission to the United States under categories E34 green card(spouse of a skilled worker or professional) or EW4 green card (spouse of the other worker). E35 (child of a skilled worker or professional) and EW5 (child of the other worker).
The process of getting EB-3 Green Cards
- Form I-140, Immigrant Petition for Alien Workers, must be filed by your employer (petitioner).
- The employer must demonstrate a continuing ability to pay the offered wage.
How to demonstrate the ability to pay the wage offered by the employer for an EB2 and EB3 green cards application
The employer may use an annual report, federal income tax return, or audited financial statement to demonstrate a continuing ability to pay wages.
The general green card process
- Filing of an immigrant petition on behalf of prospective permanent employees (by your sponsors or petitioners ) or by yourself
- USCIS approves the Immigrant Petition. If there is a visa available in your category, you file either a Green Card application or a visa application with the US Department of State.
- A biometrics appointment and provide fingerprints, photos, and your signature.
- Attend an interview.
- Notification of the outcome of the application.
Note that an H-2B visa holder seeking an immigrant position must complete the procedure by filing an adjustment of status application in Form I-485 if the worker is already in the United States or requests Consular processing if the worker is abroad.
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