If you’re a business owner who needs to hire a temporary worker to fill temporary nonagricultural jobs, the H 2B visa is a popular choice. As the employer applicant, you must determine that your need for labor or services are temporary regardless of whether the underlying job is temporary or permanent. Here’s what you need to know about the H-2B visa.
What is an H 2B visa?
The H 2B visa is a nonimmigrant visa that allows U.S. employers to petition for a nonimmigrant worker to be employed as temporary non agricultural workers on a one-time occurrence, seasonal, peak load or intermittent basis.
H 2B program requires an employer to prove to the Department of Labor and Homeland Security that it will offer a wage that equals or exceeds the highest of the prevailing wage to the temporary worker in the area of intended employment. It must cover the entire period of the approved H 2B labor certification. However, the temporary additions of staff cannot constitute the employer’s regular operation.
H-2B Visa requirements
Employers have to prove they are hiring the H2B holder for no more than one year. The applicant must also obtain the required license, and their agent must file the petition to get H 2B.
How much does the H 2B Visa cost?
Currently, USCIS charges are $460. The visa fee for a visa to the United States is $190. A few additional fees may apply if you are not of the same nationality.
The H 2B Visa costs about $170 more than all temporary employment permits. It must be noted that under United States immigration law, agents, petitioners or recruiters can never collect job placement fees. No compensation for employment in H 2B contracts is allowed. You can file an additional application for a visa with USCIS if you pay a fee that exceeds H 2B visa costs.
H 2B eligible countries list
H 2B petitions must include citizens of countries designated by the Secretary of State as eligible for participation in the H2B program. The Department’s website lists eligible countries for H 2A and H 2B. The designation of the selected country is effective at the end of the year. In effect November 10, 2021, the citizens of these countries may participate in the H 2B program.
How does the H 2B visa cap work?
Every year the number of foreign workers wanting temporary positions increases dramatically. But every fiscal year, the U.S. government sets regulations governing the numerical limit of H 2B visas at 66,000. This statutory numerical limit allows immigration services to issue H 2B twice a year, 33,000 for the first half and the remaining in the second half.
What is an Interim final rule?
On April 29, 2015, the U.S. Department of Labor and Homeland Security set up the interim final rule to establish and improve the H 2B program. It set up the prevailing wage methodology to strengthen protections for American citizens, allowing them a fair shot at locating and applying for jobs employers seek H 2B. Employers must post/advertise the job opportunity, including the job duties, to allow applications from qualified U.S. citizens.
What is the processing time for a H 2B Visa?
The minimum processing time for H 2B non immigrant worker visa is 60 days but not exceeding 120 days before workers are needed. It is a lengthy and tedious process, and the employer should allow enough time in case of corrections or unavoidable delays.
The final determination is sent electronically to the employer and, in some cases, their agent or attorney.
What is Temporary Labor Certification?
If you want to hire a foreign worker to work temporarily in the U.S., you must apply for a valid temporary labor certification (DOL).
This is not to be confused with the Labor Condition Application (LCA) that U.S. employers must file with the Department of Labor before applying for an H 1B visa for skilled workers and other nonimmigrant workers.
IMPORTANT TO NOTE: Job contractors don’t receive approval for temporary labor certification because they typically seek a permanent workforce.
How do you Obtain Temporary Labor Certification for temporary workers?
To employ seasonal workers, the employer submits Form ETA-9142 to the U.S. Department of Labor to get the authority to hire seasonal or temporary laborers.
They must then submit proof that no U.S. workers are available to do the work, and using foreign laborers will not adversely affect the working conditions of similarly employed permanent employees. Employer needs for the labor or prospective worker’s services must be short-term, regardless of whether the job can be deemed temporary.
The process is conducted by the Department of Labor’s Employment and Training Administration (ETA). The ETA has six regional offices, each with a local processing center. Applications for temporary labor certification for agricultural employment are submitted to the State Workforce Agency (SWA) to the Chicago national processing center.
The SWA determines whether the employer qualifies as an agricultural employer and whether the offered wage meets or exceeds the prevailing wage for that occupation in that area. If so, the SWA forwards the application to a Certifying Officer in one of two Washington, D.C.-based National Processing Centers. The SWA also reviews employer’s job order to ascertain that they meet program requirements.
The Certifying Officer determines whether there are sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work and whether hiring H-2A workers will adversely affect wages and working conditions of similarly employed U.S. workers. Only if all requirements are met will a temporary labor certification be granted by the Certifying Officer.
What is prevailing wage determination?
The National Prevailing Wage Center (NPWC) establishes wage rates prevailing in the area of intended employment. This wage determination ensures that foreign workers are not paid less than U.S. workers performing the same job in the same geographic area. The prevailing wage requirements apply only to full-time workers, except for H-1B, H-1B1 and E-3 nonimmigrants who may work part-time.
How does an employer establish a temporary need for H 2B workers?
An employer must show the visa is temporary unless there is a temporary need or peak employment. To establish temporary need, an employer must demonstrate intermittent need, seasonal need, peak load and one time occurrence.
What does intermittent need mean?
To clarify, H 2B temporary visas are for temporary need, nonagricultural workers who come to the U.S. on a one-time, seasonal, peak load or intermittent basis. These workers fill a critical role in the hospitality industry, but many other industries have also used the program.
Intermittent need is defined as a need for a worker that is not continual. It happens on an occasional or recurring basis needing temporary workers to perform labor or services for short periods.
Seasonal need
The seasonal need is when you must perform work that requires no regular employment for permanent workers. A seasonal need project will require a workforce that a company does not currently have and cannot require employees again.
Employment is not considered seasonal if the time during which the labor or service is required is subject to change, unpredictable or is a vacation period for the employer’s permanent employees.
The labor for which the employer seeks workers must be traditionally tied to a season of the year by a pattern or event and must be recurring for a short duration.
What is a one-time occurrence?
An employer must show that they haven’t employed workers for the services they have done in the past. It should also state that the absence of permanent employment situations has created the need for temporary workers. A one-time occurrence denotes that petitioners did not use foreign workers previously or planned for them. They must show that it is only a temporary event arising from an employment situation that would otherwise be permanent.
Peak Load Need
Peak load need means that the employer needs temporary workers to aid the permanent staff during short term demand seasons of a recurring nature. The petitioner must establish that it regularly employs permanent workers to perform services or labor at the place of employment.
Other important facts
If a visa for temporary working is issued under H 2B, you may apply for the employer’s employee benefits. Depending upon your offer, you can travel to the United States or take different jobs. You can do a part-time study to avoid interruption of temporary work. A Greencard application is also allowed while an H 2B is issued. During employment, you can also request status changes.
1#. Can my dependents join me in the U.S. on the H 2B Visa Program?
If you have an H 2B visa, your unmarried children under 21 have certain protections. Among them are the H4 visas, which means you can have them with you during your H 2B visa period. Despite their visa status, the dependent is forbidden from working in the U.S.
2#. Can you become a student on the H 2B visa?
An H 2B visa holder can do recreational work or part-time work but not complete or complete any type of work that interferes with his or her work assignments.
3#. How long will my H 2B visa last?
The H 2B visa permits a resident in the United States to stay for the period of employment shown in Form ETA-750A. You can get extensions for one year or less after the maximum period of stay. When employers are going through extraordinary circumstances and need workers temporarily to work for at least one year, the visa may extend. All submissions will undergo evaluation, and the USCIS Service Center will make decisions by merit.
4#. Does H 2B have travel limitations?
With a temporary job H 2B visa, you can travel freely without restrictions.
How we can help with your H 2B visa
It would help if you had the steady hand of an experienced immigration lawyer to navigate the rough waters of U.S. immigration law, and we’re here to help.
The Herman Legal Group, founded in 1995, can help. The law firm is AV-Rated and has been awarded the designation of “Best Law Firm” by U.S. News & World Report. The firm serves clients nationwide and from around the world.
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