An H-2B Visa allows U.S. employers to hire foreign workers to fill temporary nonagricultural jobs such as Landscaping, grounds maintenance, construction, restaurant/hospitality, maintenance, golf, manufacturing, processing, and other specialty services firms.
The temporary nature of the visa requires that the job be a seasonal need, intermittent need, peak-load need, and one-time occurrence.
However, before applying for the visa, the statutory requirements by the USCIS should be noted as the same will make the process easier for the Petitioner.
What is an H-2B Visa?
An H-2B visa is a work visa that allows employers to hire temporary workers who are foreigners to fill temporary nonagricultural jobs posts.
Addressing shortages of workers in specific fields for a fleeting season led to the implementation of H2B workers. As mentioned above, the job must be a temporary, seasonal, peak-load need, or intermittent.
With the H2B visa, thousands of skilled and unskilled workers are allowed to use their skills and make the United States their new home.
However, to qualify for the H-2B visa, the U.S. employer must establish the following:
- There are not enough U.S. workers who are able, willing, qualified, and available for the job.
- Employment of the temporary worker must not affect other U.S. workers’ wages and working conditions.
- Prospective worker’s services and temporary labor are required.
So, approval of the visa is dependent on the non-availability of U.S. workers, therefore, the need for foreign nationals. Employers must first consider U.S. workers as mandated by the rule of the United States Department of Labor.
This process necessitates looking to recruit U.S. workers first and then ensuring that no one is qualified before the employer can hire foreign nationals; the process must not adversely affect U.S. workers and their wages.
H2B Eligible country list
Not all countries’ citizens are eligible to be issued the H-2B visa. The Department of Homeland Security publishes the list of H-2B eligible countries in a Federal Register notice.
The eligibility is valid for one year from publication as the secretary of homeland security may consider adding a country to the Eligible Country List upon receiving a recommendation from the U.S. Department of State or a written request from an unlisted foreign government.
However, as an employer, If you want H-2B workers from eligible and ineligible countries, USCIS recommends filing two separate petitions. Filing a single petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help reduce your temporary worker request processing delays.
The Eligibility Countries list must be strictly considered for smooth processing of whatever country employers are willing to bring in temporary employers.
H-2B Visa Application Process
The application process begins with the U. S. employer/petitioner. The process is threefold. It is a step-to-step list that starts with obtaining a Temporary Labor Certificate from the Department of Labor and filing a petition in Form I-129 with the Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS).
Lastly, the prospective worker will apply for the H2B Visa.
Step 1: Obtain a Temporary Labor Certificate
The Department of Labor issues a Temporary Labor Certification if there are no qualified and available U.S. workers to fill the temporary position. Another consideration is that the employment of H-2B workers will not have an adverse effect on the wages and working conditions of similarly employed workers in the United States as above.
To get a Temporary Labor Certification, first, obtain a Prevailing Wage Determination (PWD) at least 60 calendar days before the required date. The Prevailing wage determination determines the minimum wage to be paid to the H-2B employee based on the area of employment and position that the employer was attempting to fill with the H-2B worker.
Then Submit a job order and an H-2B application for a Temporary Labor Certification 75 to 90 days before the start date of employment.
Following the job order submission to the State Workforce Agency, the H-2B application in Form ETA-9142B, along with a copy of the job order filed with the State Workforce Agency, must be submitted to the Chicago National Processing Center (Chicago NPC).
Note that the TLC applications will be sent to the Department of Labor’s Office of Foreign Labor Certification (OFLC). In contrast, nonagricultural job orders will be sent to the State Workforce Agency (SWA). In this state, the foreign worker will perform the actual work.
The TLC must be approved because the next step is dependent on it.
Step 2: Petition for Nonimmigrant worker in Form I-129 submitted to USCIS
After receiving the Temporary Labor Certificate, the next step is to submit Form I-129 to the United States Citizenship and Immigration Service and the TLC.
Filling of Form 1-129
This Form I-129 can only be filed by the employer listed on the TLC or the recruited agent whose services the employer has used. The employer’s agent must be a person as defined by USCIS regulations.
Part 1 of the form requires the Petitioner’s information; either the employer’s or the Petitioner’s details can be filled out.
Step 3: Apply for a visa in H-2B status.
Employees from countries other than the United States must apply for a visa and enter the country.
To apply for an H-2B visa, you must first fill out Form DS160, Online Nonimmigrant Visa Application, and pay the appropriate filing fee.
You will then receive a confirmation page, which you should print and save. The next step is to schedule a visa interview at the U.S. Department of State (DOS) embassy or consulate abroad, which is the worker’s home country.
H2B Visa Required Documents
When applying for an H-2B visa, there are a few primary documents that the prospective worker should have and bring with them to the visa interview after receiving the confirmation page of the online visa application. Here are the documents:
- A passport
- A printout of the Form DS-160 you completed online: a confirmation page will be sent to the prospective H2B worker after filling out and submitting the visa application form. Therefore, the printout is a pertinent document.
- USCIS notification of I-129 approval: the approval of the H-2B petition in Form I-129 will be required.
- Application fee payment receipt: for the visa application, the worker must have paid the necessary application fee/filing fee; the receipt of payment should be handy
- Each applicant has one photo: Uploading a photo will be required when applying; however, if the photo was not uploaded, the worker must go with a photo. Even if the photo was uploaded, you should always have a copy.
- Documents to prove the family relationship between you and any accompanying family members (marriage certificates, birth certificates, etc.) for a prospective worker looking to bring the family to the U.S.
- Documents proving that you have nonimmigrant intent and ties at home– in other words, you intend to return home once your employment concludes. Evidence of homeownership in your home country, or employment waiting for you when you get home, should suffice.
H2B Visa FAQs
How much does an H-2 B visa cost?
The petition fee for H-2B Visa is $460, with an additional $150 fee for fraud prevention and detection. However, suppose the Petitioner wants the application process to be expedited. In that case, a premium service option is available for the H-2B Visa petition, which will cost the employer $1500 in addition to the above expenses.
Tell me the maximum number of H-2B visas approved each year?
The U.S. government can only approve a specific number of H-2B visas. There is a statutory limit on the number of foreign workers who can be granted an H-2B Visa in a fiscal year in the United States.
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).
Can I bring my dependents with me on the H-2B Visa Program?
The dependent of an H-2B worker may accompany the worker to the United States. In addition, an H-2B worker’s spouse and unmarried children under 21 may apply for admission in the H-4 nonimmigrant classification.
It should be noted that family members with H-4 status are not eligible for employment in the United States; however, they are permitted to attend school.
How long can you stay in the U.S. with an H-2B visa?
The H-2B classification generally allows for a three-year maximum stay. As a result, after three years of holding an H-2B visa, H-2B employees must leave the country for three months before applying for readmission as temporary nonagricultural workers.
What is the difference between H-2B Visa and H-1B Visa?
An H2b Visa allows U.S. employers to hire foreign workers to fill temporary nonagricultural job positions and is available to both skilled and unskilled workers instead of the H1B category, which is only available to highly skilled workers in specialty occupations.
If you need help
Since the visa application process can be complicated at times, it is highly recommended that you speak with an immigration professional and allow us to put our skills to work for you.
We can analyze your case, identify the available options, and help you decide the safest, most cost-effective, and quickest route to immigration.
Contact the Herman Legal Group; we are an award-winning immigration law firm founded in 1995 and experienced in all areas of immigration.
Schedule a personal consultation with immigration lawyers by calling 1-800-808-4013 or 1-216-696-6170 or booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.
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