The H 1B and H 2b visas allow foreign nationals to come and work in the US. Both these nonimmigrant work visas are popular options for individuals who desire to work in the United States.
However, they both differ in terms of eligibility criteria, period of stay, immigration benefits, etc., and it becomes vital to know which visa is best for you. This article will discuss the basic differences between an H 1b and H 2b visa so that you can make the right choice while applying.
Differences between H1b visa and H2b visa programs
What are H 1b and H 2b visa programs?
H 1b visa program
The H 1b visa program is specifically created to fulfill the shortage of skilled labor in the US market. It allows foreign nationals to apply in ‘specialty occupations’ jobs that require theoretical and practical application of specialized skills and knowledge.
H 2b visa program
The H 2b visa program is created to fill temporary nonagricultural jobs. The employment should be of a temporary position that is for a limited period of time, such as a one-time occurrence or seasonal needs.
Eligibility Criteria Requirements
H 1b Visas
The H 1b visas are granted for specialty occupations, and you have to show that you have the skills to perform services in such occupations. Following are the requirements to qualify for an H 1b visa.
- Having at least a US bachelor’s degree or its equivalent in the area of specialty occupation.
- The position requires the application of specialized knowledge, which can normally be performed by persons holding such a degree.
- Having a US employer who is ready to sponsor your visa petition.
H 2b Visas
The US employer who is willing to sponsor the foreign worker must satisfy the following conditions:
- The US workers are not readily available, able, qualified or willing to do the temporary work.
- The temporary workers hired from outside the US will not adversely affect the wages of US workers employed in similar jobs.
- The nature of the work is temporary.
The foreign workers have to satisfy the following conditions to prove their eligibility for H 2b visas.
- They hold a temporary job offer from a US employer.
- They must prove their ability to perform seasonal or temporary work.
- Further, they must have intentions of returning back to their home country before the expiration date of their temporary work visas.
How will I know that the work is of temporary nature?
USCIS has defined the following categories of work as of temporary nature:
- One Time occurrence – If the employer can satisfy that due to some event/situation, the need for some workers for a temporary period has arisen, and the employer has not employed temporary workers to perform such services in the past and may not require workers to perform such services in the future, they may claim one-time occurrence to hire foreign workers on H 2b visas.
- Seasonal need for workers – The petitioning employer must prove that the workers are required for such services that are traditionally tied to a season and is of reoccurring nature.
- Peak Load Need – When the employer requires additional assistance to its permanent staff because of peak time, they can request H 2b visas provided they prove that the temporary employment of workers will not become part of the employer’s regular operation.
- Intermittent need – The petitioning employer has to prove that they have not employed permanent staff to perform services or labor and may occasionally or intermittently require temporary workers for short periods to perform services or labor.
Process of H 1b and H 2b visas
H 2B Visas
Step -1 The H 2b employer must apply for a Temporary Labor Certification application to the Department of Labor for submitting Form I-129 to the USCIS. The DoL will see the following:
- That there are sufficient US workers who are qualified and willing to work for the employer’s temporary work.
- That the hiring of the foreign worker is not adversely affecting the wages and working conditions of US workers employed in similar work.
Step – 2 Once the DoL is satisfied, it will issue temporary labor certification, and the employer can file for an I-129 petition. The employer has to file a change of status application only if you are in the US on any other visa status. Once USCIS approves your I-129 petition, your visa status will be changed.
Step – 3 If the USCIS has approved your I-129 petition and you are outside of the US, you can apply for a visa and go for an interview at a US embassy or consulate.
H 1B Visas
The H1b process is similar to H 2B visa. However, in the first step, the employer has to file Labor Condition Application(LCA) with the DoL instead of a Temporary Labor Certification application. Once the LCA is approved, the employer can move to the next step, which is filing the I-129 form.
If the prospective employee is already in the US on any status, the employer has to request a change of status along with Form I-129. If not, the employee has to file a visa and give an interview at the US embassy or consulate abroad after approval of the I-129 petition.
Period of Stay
The H 1b visa program allows the foreign national to stay for an initial period of 3 years which can be extended up to a maximum period of 6 years. However, in certain cases, you can stay for longer than 6 years see 8 CFR 214.2(h)(13)(iii)(D) and (E).
In usual cases, the USCIS will grant the H 2b visas for the period authorized on the temporary labor certification. However, the H 2b visa holder can make an extension request which is granted in 1-year increments, and a new temporary labor certification must accompany the extension request. You can only stay for a maximum period of 3 years on H 2b visas.
There is an annual cap on the number of H 1b and H 2b visas that USCIS can issue each year.
For H 1b visas, the annual statutory numerical limit is 85,000 visas which includes 65,000 visas for individuals having at least a US bachelor’s degree or its equivalent and 20,000 visas for a person holding a US master’s degree or equivalent.
The number of H 2b visas that can be issued by the USCIS has a numerical limit of 66,000 visas per year. It is further limited to 33,000 visas for the first half of the fiscal year (October 1 – March 31) and another 33,000 visas for the second half of the fiscal year (April 1 – September 30).
If the 33,000 limit is not filled in the first half of the fiscal year, the deficiency can be carried forward to the second half of the fiscal year.
For example: If only 29,000 applications were made and accepted for temporary non-agricultural workers under H 2b visas in the first half, the deficiency of 4,000 could be carried forward for the second half.
So, US employers can bring foreign nationals for temporary jobs under H 2b visas for up to 37,000 in the second half of the fiscal year.
Family Members of H 1b and H 2b visa holders
The family members (spouse and unmarried children under 21 years of age) of H 1b visa holders can apply for H 4 visa as dependents of H 1b visa holder.
Not only that, they are allowed to work in the US and file Form I-765 (Application for Employment Authorization) as soon as the H 1b visa holder has started the process of seeking employment-based legal permanent residence in the US.
The H 2b holder’s family members (spouse and unmarried children under 21 years of age) can seek admission in the US on H-4 dependent visa; however, they are not eligible to seek employment in the US.
The H 1b visa is a dual intent visa, and the visa holders can keep the intention of applying for a green card while being on H 1b status. The dual intent provides a very big advantage for individuals seeking to stay and settle in the US.
All you need is a US employer who is ready to sponsor your I -140 petition (Immigrant petition for alien workers), and if it is approved by the USCIS, you can apply for a green card.
However, unlike H 1b visa, the H 2b visa does not allow dual intent. The H 2b visa holder should have the intention of departing from the US after the expiry of their visa. If you are on the H 2b visa having dual intention may adversely affect your visa status.
How can Herman Legal Group help you?
Herman Legal Group has been providing immigration services in the US for the last 26 years and is AV-Rated and has been awarded the designation of “Best Law Firm” by US News & World Report.
You are not alone in your immigration issues, and we are there to support you in every step of your visa process. Sit with one of our immigration attorneys or consult with them online to discuss your immigration matter. You can set up a consultation with our experienced immigration attorneys by calling us at 1-216-696-6170 or by booking online. Most of their meetings with clients and prospective clients are conducted online, via Skype, Zoom, WhatsApp, Facetime, or Google Meet.