The H 2B visa program allows U.S. agents and employers who meet certain regulatory standards to bring foreign nationals to fill temporary nonagricultural jobs in the U.S. The U.S. agent or prospective employer must file Form I-129 on behalf of the foreign worker after proving a temporary need. The temporary need is established if it is a(n):
- One-time occurrence
- Seasonal need
- Intermittent need or;
- Peak load need.
Peak load need means that the employer needs temporary workers to support its permanent workers in periods of peak demand and that the temporary workers will not become a part of the permanent workers.
Who May Qualify for H 2B Visa Program?
Before it qualifies for H 2B visa classification, the petitioner must establish:
- That there aren’t enough American workers who are available to do the temporary work.
- That onboarding H 2B workers will not adversely affect the prevailing wage and the working conditions of American workers.
- That it needs the prospective workers in temporary positions, regardless of whether the underlying job can be deemed temporary.
For nonimmigrant visa purposes, labor and service are considered temporary if they are a one-time occurrence, a seasonal need, intermittent need or peak load need.
NOTE: The H 2B visa is valid only for temporary jobs.
How to Establish a One time occurrence?
Petitioners claiming a one time occurrence must demonstrate that they have:
- An employment situation that would otherwise be permanent but has been overshadowed by a temporary event that necessitated one time temporary employment.
- Never employed workers to perform the same labor or service in the past and will not need to hire for the same job in future.
How to Establish Seasonal Need?
An employer claiming seasonal need must show the labor or service for which it seeks H 2B workers is:
- Traditionally tied to a season of the year by a pattern or event
- Of a recurring nature.
The petitioner cannot claim seasonal need if the period it does not need the labor or service is:
- Subject to change
- Unpredictable
- A vacation period for permanent workers
How to Establish Intermittent need?
To establish intermittent need, the petitioner must show that it:
- Has not contracted permanent staff or full-time workers to perform services or labor
- Occasionally needs temporary additions to perform services and labor for short periods.
What is Meant by Peak Load Need?
An employer claiming peak load need must demonstrate that it:
- Regularly employs permanent workers in the in-demand services or labor
- Has the need to supplement its permanent members temporarily due to a short term or peak load need.
- The temporary employees on H 2B visa will not become part of its permanent staff.
NOTE:
- H 2B petitioners also need a valid temporary labor certification (TLC) granted by the U.S. Department of Labor.
- Workers employed in Guam need valid temporary labor certification from the Guam Department of Labor.
How Does a Petitioner Obtain Temporary Labor Certification?
The labor certification application begins with the petitioner submitting Form ETA-9142 to the U.S. Department of Labor for grant of permission to employ workers on a temporary basis. In the application, the employer must demonstrate that there aren’t any American workers to undertake the work and using foreign workers will not adversely affect the wages or working conditions of similarly employed permanent employees.
Limitations of Temporary Labor Certification
An approved temporary labor certification has the following limitations:
- It is not transferrable, and its operation is limited to one employment opportunity and employer.
- It is legally valid for the specific employer, timeframe, employment and number of foreign workers stipulated for temporary work in the certification.
H 2B Labor Certification Application by Job Contractors
As a rule of thumb, the USCIS throws out H 2B applications by contractors since they are traditionally tied to permanent jobs. But if the contractor can establish that the need for workers is temporary, they qualify for H 2B status based on a peak load requirement and a one time occurrence.
When Should Petitioners File the Labor Certification Application?
Petitioners must complete DOL’s Form ETA-9142 in a minimum of 60 days, but not exceeding 120 days before the first day H 2B workers begin employment.
The time period can be waived in extraordinary circumstances.
What is the H 2B Cap for Foreign Workers?
There is a statutory numerical limit on the number of H 2B visa holders for each fiscal year. At the moment, Congress set the H 2B cap at 66,000 per year. Half of these visas are issued in the first half of the year, starting October 1 to March 31, and the remaining 33,000 visas are given in the second half of the fiscal year (April 1 to September 30).
The unused H 2B numbers from October 1 to March 31 will be available for employers seeking temporary non agricultural workers in the second half of the same fiscal year. However, unused H 2B’s for one fiscal year do not cross over to the next.
When the Congressional H 2B visa cap is reached, USCIS immigration services may only accept petitions from those exempt from the H 2B cap.
Who is Exempt from the H 2B Cap?
As a rule of thumb, workers with H 2B visas in the U.S. who change employers, extend their stay or change terms and conditions of their labor are exempt from the statutory cap. Similarly, a temporary worker who has previously been counted against the cap in the same year proposed employment begins is exempt from the cap if they appear on the employer’s petition that demonstrates that they have been counted.
Spouses and children of H 2B visa holders falling under H 4 nonimmigrant classification are also exempt from the visa cap.
The following classes of workers are also exempt from the H 2B visa cap:
- H 2B workers in fish roe processing
- A non immigrant worker in the Commonwealth of Guam or the Northern Mariana Islands till December 31 2029.
What is the H 2B Program Process?
H 2B visa application is a three-fold process:
Step 1: Application for TLC to the DOL. Before the USCIS service center grants H 2B classification, the employer must first apply for TLC from the Department of Labor. The purpose of obtaining a valid TLC is to indicate that both the employer and beneficiary worker meet the eligibility criteria for the visa.
Step 2: Form I-129. After grant of temporary labor certification, the petitioner fills and submits Form I-129 with USCIS. When filing, the petitioner must attach the original TLC to Form I-129. The process is different if the application for TLC was processed by the Department of Labor’s Foreign Labor Application Gateway. In this case, the applicant must attach a printed copy of the final determination of the TLC application. Immigration services will consider the final determination as proof of grant of TLC.
NOTE: Before you share sensitive information, ensure you’re on the Federal government portal.
Step 3: Application for admission. After approval of Form I-129, prospective employees can apply for admission or a work visa.
To apply for admission as a H 2B visa holder, prospective temporary workers must:
- Apply for an H 2B visa with the Department of State at a Consulate abroad or U.S. Embassy and then seek admission with Customs and Border Protection at a port of entry.
- Seek admission in the U.S. with Customs and Border Protection in instances where an H 2B visa is not necessary.
H 2B Fraud
Anyone, including American workers and foreign workers who suspect H 2B abuse or fraud to their person or that of another, can report by filling out this online form.
NOTE: H 2B petitioners must notify the USCIS of any payments or agreements to pay prohibited fees to a facilitator or recruiter within two days of knowing of such agreements or payments.
What Countries are Eligible for H 2B Visas?
H 2B petitions can only be approved for foreign nationals whose eligibility is okayed by the secretary of homeland security in liaison with the Office of the Secretary of State.
The Department of Homeland Security releases a federal register detailing all eligible countries.
You can find the list of eligible H 2B countries is here.
Can the Department of Homeland Security Add Countries to the H 2B Eligible List?
H 2B eligibility in the federal register is valid for only one year. However, you can petition the Department of Homeland Security (DHS) to consider adding another country by sending a written request to the Department of State at a U.S. Consulate or Embassy or Homeland Security’s Office of Policy.
If the DHS secretary determines eligibility, they may add the country as eligible at any time.
What is the Period of Stay on H 2B?
Traditionally, USCIS grants H 2B classification for the period stipulated on the TLC. H 2B workers can extend this classification for qualifying employment in bits of up to a year each. A new valid TLC covering the sought time must be submitted with each extension request.
But the maximum period you can stay in the U.S. under H 2B classification is up to three years.
A H 2B worker who has been in the US for the statutory three years must leave and remain outside the United States for an uninterrupted period of three months. After this period, the can seek readmission as H 2B visa holders. Additionally, an initial period spent in H and L classifications counts towards H 2B time.
How Will I Be Notified About My Petition Status?
Your prospective employer will receive notification from the Certifying officer if your application fails.
The notification is accompanied by a request for information stating:
- Why the application was denied
- Proposed changes to rectify the application
- The time allowed for resubmission. Typically, they allow only seven calendar days.
- The appeal protocol should the employer choose to appeal
H 2B Visa and Status: Questions Frequently Asked
1#Can I change my status from H 2B Visa to Green Card?
You cannot transfer the status of an H2 Visa into a green card. You have the choice, however, to apply for another visa. The application process requires finding another employer and filing new forms for I-129. If you want a green card or an E-29 visa, you must return to your home country.
2#Can my stay be longer than 12 months on the H 2B visa?
In exceptional circumstances, if a company requires temporary workers for more than ten days, a temporary worker may apply for an extension of the visa. Applicants for extensions will be evaluated on their merits.
3#Can I become a student on the H 2B visa?
Yeah! H 2B visa holders may pursue recreational or partial studies for periods but not full-time studies affecting your temporary job.
4#How much does it cost to get a H 2B visa?
As of December 2020, USCIS charges will exceed $465. Other charges may be applicable according to your country of residence.
5#What are the requirements for H 2B program?
- Establish temporary need either as an intermittent need, seasonal need, peak load need or a one time occurrence.
- Apply for TLC, fill out Form I-129
- Apply for admission to the U.S.
6#Can Family Members and Dependents Join an H 2B Visa Holder?
A H 2B holder’s family members, including their spouse and unmarried children under 21 years, may apply for admission under H4 visa. However, family members cannot work in the U.S. with H 4 visa classification.
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