American agencies and employers file for H 2B visa classification to fill up temporary jobs or due to a temporary event.

H 2B visas are instrumental for employers looking to hire temporary non-agricultural workers to perform services in the United States.

Filing for H 2B classification can be hectic because of the complex procedures and timelines. Below is all you need to know before filing for H 2B classification.

What is an H-2B Visa?

H2B visas are nonimmigrant permits that allow U.S. employers to hire a foreign worker for temporary work in the U.S. through the United States Citizenship and Immigration Services. It can serve for temporary, seasonal or intermittent works.

The H 2B visa application form is filled by U.S. employers or agents who want to onboard temporary non-agricultural workers under H 2B classification.

How Does the H 2B visa Cap Work?

The U.S. Citizenship and Immigration Services caps the H 2B visa at 66,000 for foreign workers each year.

These visas are granted on a first-come, first-served basis. They are granted two-fold, 33,000 in the first half of the fiscal year (October 1 to March 31) and the remainder during the other half (April 1 to September 30) to satisfy the statutory numerical limit.

Once the statutory numerical limit is reached, USCIS only accepts applications exempt from the H 2B cap.

What is the Variance between H 1B and H 2B Visa?

When filing for H 2B classification, it is imperative to understand the difference between H 1B and H 2B visa. For the H 1B, employers seek admission of a nonimmigrant worker in a speciality domain.

H 1B is common when an employer wants to hire qualified or specialized workers with university degrees or master’s degrees.

Upon qualification, H 1B visa holders are allowed a three to six years visa validity period.

On the other hand, an H 2B visa holder is allowed a period of one year which is subject to renewal for a maximum period of 2 years.

Another difference between H 2B visa and H 1B is that after the validity period expires, an H 2B worker must leave the United States and reapply for an extension. H 1B workers do not have this requirement.

H 2B Visa Eligibility?

Temporary Workers Eligibility for Temporary Jobs

H 2B visa beneficiaries must satisfy the eligibility criteria specified by the Department of Labor.

The first eligibility rule applies to the countries whose citizens are allowed to immigrate to the United States for temporary jobs.

To establish if you qualify for a temporary job in the U.S., you must meet the USCIS and the Department of Labor (DOL) criteria.

The Department of Homeland Security publishes a list of eligible countries for H 2B each year in the Federal Register.

To qualify for H 2B visa classification, you must:

  • Produce a valid job offer from an American employer to perform temporary non-agricultural work
  • Demonstrate the intent to return to your home country upon the end of your visa’s validity period

Employers’ Eligibility for Temporary Workers

Employers seeking workers must be based in the United States and possess a valid temporary labor certification.

The employer must also prove the temporary job that needs to be performed and that there aren’t enough US-based workers to fill these positions.

Immigration law describes a temporary need for a temporary worker as a seasonal need, peak load need, an intermittent need or a one-time occurrence.

It is the employer’s onus to prove temporary need. Documentation to prove temporary need includes a list of projects and timelines, contracts and narrative explanations.

#How Do You Prove Seasonal Need?

The employer must show that the labor or services it seeks are conventionally tied to a season of the year by a recurring pattern or event.

When applying for seasonal needs, the petitioner will disclose the periods of the year when it does not need the labor or services.

If the period the labor or services is required is unpredictable or a vacation period for the employer’s permanent employees, then the need is not seasonal.

#How Do You Prove Peak Load Need?

To satisfy peak load need, the employer or job contractor must show that it regularly employs permanent workers to perform the same job duties, and it needs to hire supplemental non-immigrant workers.

However, the non-immigrant worker will not become part of the employer’s regular activities.

#How Do You Prove Intermittent Need?

The employer must show that it has never employed workers in permanent standing to perform the labor or services, but it intermittently needs temporary labor for short periods.

#How Do You Prove a One time occurrence?

The petitioner must establish that it has never hired workers to perform similar labor or services in the past and it will not need temporary workers for the same services or labor in the future.

Alternatively, the petitioner must establish that it has an employment situation that is otherwise permanent, but a temporary event has created the need for temporary labor.

#Criteria for Obtaining Temporary Labor Certification (TLC)

Before successfully applying for H 2B classification, the employer must first submit their temporary labor certification application to the U.S. Department of Labor’s Employment and Training Administration (ETA).

A valid temporary labor certification shows that employing foreign nationals will not adversely affect the working conditions and wages of similarly employed American nationals.

What is H2B Application Criteria?

Step 1: Application for temporary labor certification

The first step is the application for temporary labor certification with the DOL.

Step 2: Filing and Submitting Form I-129 to USCIS service center

After filing and receiving TLC from DOL, the petitioner submits Form I-129 with a USCIS service center.

In most cases, the petitioner must attach an original copy of their TLC with Form I-129.

However, if the application for TLC was processed by DOL’s FLAG online system, the petitioner must include a printed copy of the final determination together with Form I-129. In this instance, USCIS will consider the printed copy the original TLC and approved TLC.

Step 3: Application for admission/visa for prospective workers outside USA

After the approval of Form I-129 by USCIS, prospective H 2B visa holders outside the U.S. must:

  • Apply for H 2B visa with the U.S. Department of State at a consulate abroad or embassy then seek admission to the country at a U.S. Customs and Border Protection (CBP) at a port of entry.
  • Seek direct admission into the U.S. with CBP at a port of entry where H 2B visa classification is not required

How long will my H 2B visa last?

Typically the USCIS grants the H2B visa to the person who requested the services of their employer. The visa period will be extended for 3 years from the expiration of your visa. Nevertheless, you may renew it only when there are extraordinary circumstances. Each time an employer renews an employment contract they must renew the employment certificate. Once you’ve lived 3 years in the U.S. as part of H2B visa program, your visa is not valid.

What are the Circumstances under Which Application H 2B visa can be Denied?

Your H 2B visa application can be denied when:

  • The application timeframes and deadline are not met
  • There are sufficient workers in the U.S. to undertake the temporary work
  • Employers fail to comply with positive recruitment requirements
  • Working conditions, wages, or benefits of similarly employed permanent workers are compromised
  • An employer recently breached terms and conditions for H 2B certifications

H2B Frequently Asked Questions

#Can I change my status from H 2B Visa to Green Card?

The H 2B visa is for temporary nonimmigrants meaning that it will expire at the end of the year or at completion of work in your country. You can change your visa status to a Green card. You may be able to obtain a different permit for non immigration. The eligibility process involves finding a new employer and completing a new Form I-129. The first step is returning to your homeland and filing the green card visa application afresh.

#Does the H 2B have Travel restrictions?

With an H 2B visa, there aren’t any travel restrictions. Visa holders can travel as many times as they want without restrictions before their H 2B expires. There is no time limit on your stay abroad.

#Can my Dependents join me in the U.S. on the H 2B Visa Program?

Your parents can also be accompanied in the United States when they apply for immigration remittance under the H4 visa / nonimmigrant status. Only married couples and unmarried children younger than 20 may have the option to apply for a dependent visa. It is urged not to apply for work visas or get work permits once in the United States. If the visa is valid, you are eligible for permanent resident status.

#What kinds of jobs qualify for the H 2B Visa Program?

The H2B Visa program provides a variety of job opportunities within the United States. This includes hotels, commercial buildings, warehouses and retail stores.

#Can my stay be longer than 12 months on the H-2B visa?

If an ‘extraordinary circumstance’ exists where an employer requires temporary workers for longer term then the employee can extend their visa. All applications are evaluated on a merit basis by USCIS.

#H2B Visa processing time period

Visa processing usually occurs within 60 to 100 days. It is advisable that the employer files this application at least 60 days but not more than 120 days before the temporary worker is needed. Since the H 2B application process is hectic, the employer needs to allow enough processing time for the visa. H 2B certification applications made after 120 days will be returned by DOL.

#Can my dependents study on their H-4 visas?

H-4 dependents may be allowed in the United States without an F-1 visa.

#Can I become a student on the H-2B visa?

A student with an H-2C visa will be granted solitary or part-time study. However, you cannot join full time programs like under F 1 visa.

How the Herman Legal Group Can Help?

You need the steady hand of an experienced immigration lawyer to navigate the rough waters of U.S. immigration law.

Let us 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 success

Contact the Herman Legal Group, We are an award-winning immigration law firm, founded in 1995, and experienced in all areas of immigration: family, employment, investor, deportation defense, citizenship.

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