An H-2B visa gives employers the opportunity to hire foreign workers to fill non-agricultural job positions, which are seasonal, intermittent, a peak load need, or a one-time occurrence. In addition, the job must be of a temporary nature.
In general, the H-2B classification allows for a three-year maximum stay. So, after three years of holding an H-2B visa, the H-2B employees must leave the United States for three months before applying for readmission as temporary non-agricultural workers.
However, the stay period of an H-2B visa holder can be extended by the USCIS; provided that the extension does not result in the employee staying in the U.S. for a maximum period of three years, the application will be denied if it does.
It should be noted that the extension process is very similar to obtaining the H-2B visa at first; one of the differences is that the extension application does not conflict with the H-2B cap regulation. That is, the statutory limit of 66,000 foreign workers granted an H-2B Visa in a fiscal year in the United States would not be applicable.
What is an H2B Visa?
The H-2B visa classification is for foreign workers seeking temporary non-agricultural employment in the United States. The job must be temporary, and temporary is if the employer’s needs are seasonal, peak load, intermittent, or one-time.
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.
It is noteworthy that in the United States, there is a statutory numerical limit on the number of foreign workers who can be granted an H-2B Visa in a fiscal year. The H-2B cap has been set by Congress at 66,000 per fiscal year, with 33,000 for H-2B workers who begin work in the first half of the year (October 1 – March 31) and 33,000 for H-2B workers who begin work in the second half of the year (April 1 – September 30).
However, if the numerical number is not exhausted in a fiscal year, the unused numbers cannot be carried over for petition approvals in the following fiscal year.
An H-2B worker seeking an extension of the stay period, on the other hand, will not be affected by the H-2B numerical limitation for each fiscal year.
The Definition of temporary need
Employers seeking temporary labor are responsible for demonstrating that the need for H-2B employees is only temporary. Although in general, the maximum need period must be one year or less.
On the other hand, a temporary need could last up to three years in the case of a one-time occurrence.
Temporary work is considered temporary for the H-2B program if it falls into one of the following categories:
A job is deemed seasonal if an event has traditionally been linked to a specific season of the year. The Petitioner/employer will be clear about the time which the service of the temporary worker would not be needed.
A one-time occurrence indicates that the employer will not require workers to perform the services or labor in the future, making it more of a one-and-done temporary job.
Peak load need
The employer regularly employs permanent workers to perform services or work at the workplace, but the employer needs to supplement its permanent employees seasonally due to temporary positions/ events.
The employer does not have permanent or full-time workers to perform the services or labor but occasionally relies on temporary workers for short periods.
H-2B Visa Application Process
- An H2B Visa begins with the Temporary Labor Certification application (TLC or labor Certificate). The submission of application for TLC will be at the Department of Labor’s Office of Foreign Labor Certification (OFLC) and non-agricultural job order to the State Workforce Agency (SWA). In this state, the foreign worker will perform the actual work.
- The Department of Labor grants the valid Temporary Labor Certification if there are no qualified and available U.S. workers to fill the temporary position. Another factor to consider is that the temporary jobs will not adversely affect the wages and working conditions of similarly employed workers in the United States, amongst other things.
- Temporary Labor Certification approval might support the claim that the employer has a temporary need.
- Following DOL approval of the Temporary Labor Certificate, the employer listed on the TLC or the employer’s U.S. (H-2B petitioner) must file the H-2B petition with the appropriate USCIS office. Along with the petition, a copy of the TLC will be filed. The petition may request one or more named or unnamed H-2B workers, but the total number of workers may not exceed the number of positions specified on the Labor Certificate.
- An H-2B petitioner should expressly state in the petition whether the H-2B worker is in the United States or is a national of a country that is not eligible.
- Suppose the H-2B employee is a national of a country that is not eligible. In that case, the Petitioners must submit evidence demonstrating how the request for H-2B workers serves the national interest of the United States while the USCIS reviews the petition.
- Following the petition’s approval, prospective workers must apply for a visa at the nearest embassy or consulate outside the United States.
- H-2B workers are permitted to enter the United States up to ten days before the beginning validity date of commencement of work listed on the approved H-2B petition, allowing them to travel to their work sites but not begin employment until the petition’s beginning validity date.
- Also, H-2B workers are permitted to stay in the United States for up to ten days after the expiration date of the approved H-2B petition to leave the country or seek an extension or change of non-immigrant status.
Regulations the employer must comply with
The employer is mandatorily required to comply with a specific requirement in the process of H2B Visa application, including but not limited to:
Requesting the return of U.S. laid-off workers
The employer is obliged to request the return of former U.S. workers, including laid-off U.S. workers, who worked in the job opportunity identified on the TLC the previous year.
Accepting referrals from eligible U.S. workers
The employer must also continue to get referrals from all qualified U.S. workers who apply for the job until 21 days before the start date of need.
Prohibition of laying off U.S. workers
The H-2B employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation, which is the subject of the Temporary Labor Certification in the area of intended employment between 120 calendar days before the date of need and the end of the certification period.
The only exception to this requirement is legitimate reasons, such as a lack of work at the end of a season if the laying off all H-2B workers precedes that of any U.S. worker in comparable employment.
Eligibility of H-2B workers
The H-2B worker must be a citizen of one of the countries listed. The Department of Homeland Security publishes a list of H-2B eligible countries in the Federal Register. However, the secretary of homeland security may consider adding a nation to the Eligible Country List if the United States Department of State recommends it or if an unlisted foreign government submits a written request.
The foreign employee must intend to return to their home country after the H2B Visa expires. During the visa interview at the embassy, this intention is better established. Employees should take documents proving that the worker has non-immigrant intent to the embassy; evidence of homeownership in your home country or employment waiting for employees when they return should suffice.
Submission of Petition for a Non-immigrant
The employer is required to file Form I-129 with the U.S. Citizenship and Immigration Services approval by submitting a petition for a non-immigrant worker. The foreign worker cannot apply to the embassy/consular to process the H-2B Visa until the employer has submitted the petition.
How long can an H-2B visa holder stay in the United States?
The endorsement of the authorized stay period of H-2B visa holders is on the temporary labor certification.
In general, the H-2B classification allows for a maximum stay of three years. Therefore, an H-2B employee who has been in the United States for three years must leave the country for three months before reapplying for H-2B non-immigrant status.
The norm is that a temporary worker will typically stay for no more than one year unless a foreign employee must remain for up to three years.
What is H-2B extension?
Generally, an H-2B worker should not stay longer than the time specified on the TLC. H-2B extension is simply extending the H-2B worker’s stay period beyond the endorsement on the TLC by the USCIS before the visa’s expiration.
Upon approval of the application for extension, the worker is free to stay beyond the stay period in the first TLC. However, the new stay period will be stated in the new Labor Certification. The application to extend the stay of a non-immigrant worker is made by the employer or on his behalf.
Step 1: Application for a new Temporary Labor Certificate
The employer/petitioner will apply for a new Temporary Labor Certificate. The new TLC has to be issued by the Department of Labor before proceeding to the next stage.
The process of getting the new Labor Certification:
Submit Form ETA 750A with State Workforce Agency (SWA)
The employer will file Form ETA 750A with the State Workforce Agency (SWA) in the foreign employee’s area.
Issuance of the Labor Certificate by the DOL
After submitting Form ETA 750A to the State Workforce, the employer will wait for the U.S. Department of Labor to issue the Labor Certificate.
Step 2: Application for extension of stay to the USCIS with the new TLC:
The next step is to submit an extension application to the USCIS, which are as follows:
Application for Extension to the USCIS in Form I-129:
applying for an extension of time in Form I-129 to the USCIS. Since the H-2B worker is in the United States and requesting an extension of stay, the name of the H-2B worker must be stated in Form I-129. Except for certain professional athletes traded between organizations.
Approval, Denial, or Request for evidence by the USCIS:
After submitting the application for extension of time in Form I-129, If the application for extension of time is approved, the USCIS will send an approval notice in Form I-797; if the application is denied, the USCIS will send a denial notice. In some cases, the USCIS may request evidence.
Note that H-2B workers seeking to extend their status with a new employer may not begin work until the new H-2B petition is approved.
H-2B Dependent and Extension of stay period
- The dependent of an H-2B visa holder may accompany the worker to the United States. That is, an H-2B worker’s spouse and unmarried children under the age of 21 may apply for admission in the H-4 non-immigrant classification for the same period of access or extension as the H2B worker.
- Note that family members in H-4 status are not eligible for employment in the United States; however, they can attend school.
- Obtaining an H-4 visa for H2B dependents, the prospective H2B visa holder and dependents are to apply for both the H-2B visa and the H-4 visa at the same time at the U.S. Consulate in their home country.
- H-4 dependents of the foreign employee face the same restrictions on stay and permission to remain in the country as the H-2B beneficiary during the pendency of the new employer’s petition. So, H-4 dependents are permitted to stay in the U.S. as long as the H2B worker’s stay is authorized.
What kinds of jobs qualify for the H2B Visa Program?
Non-agricultural job positions that qualify for the H2b Visa program include landscaping, grounds maintenance, construction, restaurant/hospitality, golf, manufacturing, processing, and other specialty services firms.
The non-agricultural jobs must, above all, be temporary. The Temporary job is seasonal, intermittent need, peak load, or occurs only once.
FAQs About H2B Visa Extended
1#Can the H-2B visa be extended after three years?
An H-2B worker may stay in the United States for a maximum of three years; after three years, the worker should first leave the country for a continuous period of at least three months before seeking readmission. The maximum stay period for an H2B worker is three years. Therefore, if the employee has stayed for an uninterrupted period of three years, there is no extension for such a worker.
2#Can my stay be longer than 12 months on the H-2B visa?
Before the expiration of the 12 months, If an application for an extension of time is approved, the stay period can be extended beyond the 12 months on the visa by the USCIS. So, the extension is dependent on the approval of the application.
3#Is it possible to apply for a Green Card while on H-2B status?
While on an H-2B visa, an H-2B visa holder may apply for a Green Card. The foreign nationals may obtain immigrant status in the United States through Family-Based Immigration. Suppose an H2B worker has close relatives that have permanent residence (parents, unmarried minor children, and spouses). In that case, the relatives can file an immigration petition for the worker as a beneficiary.
How we can help you?
Herman Legal Group is willing to guide you through the H2B visa application process. In addition, if you want to extend the stay of your H2B worker, we can help you through the process as well. Contact us today.
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