The H 2B program permits foreign workers to take temporary nonagricultural jobs in the United States. Consecutive management has significantly accelerated the costs and complexity of using the H 2B program.
Furthermore, the demand is beyond Congress’ limit that most companies don’t have any jobs, reducing economic growth and encouraging illegal labor. This post will discuss the H 2B program and guide on H 2B visa requirements.
What is H 2B visa in practice?
About half of H 2B visa holders are employed as landscapers and groundskeepers. The other half works in various field jobs, including kitchens and waiter/waitress, food processing, construction laborers, housekeeping, and forestry workers.
However, this is for a temporary period, and they don’t serve as the employer’s permanent workforce.
The H 2B program, also known as a guest workers visa program, enables employers to get employed workers who provide nonagricultural services temporarily or for a limited time to serve labor shortages.
Agro-tourism services can be excluded under H 2A petitions under interim Final Rule.
The Visa Cap
The eligibility for H 2B program stands at 66,000 approvals per year, with 33,000 H2B jobs for each half of the year. H 2B is famous, but visa limits are usually capped each fiscal year. However, the total number of U.S. H 2B visa holders is substantially more than that quota since Congress amended the spending bill. Currently, the federal government has allowed more than 100,000 Americans to have a H 2B visa.
Temporary measures during the COVID-19 Pandemic
The H 2B program was significantly liberalized during the COVID-19 Pandemic to improve food security. Temporary measures allowed H 2b workers in U.S. jobs that had already been working until an application was received from USCIS regional service center. Besides that, some H 2B worker stays could be extended for a period of 3 fiscal years.
The return of workers exemption
The exception for incoming worker exemptions from the H 2B visas began in 2015. Under this exemption, any person who worked on H 2B visas at the end of the fiscal year was excluded from a capped annual salary. These exemptions substantially increase the number of H 2B visa holders in the U.S.
Workers exempt from the H2B Visa Cap
As a rule of thumb, H 2B workers in the United States who change their employers, extend their stay, or change working conditions are not subject to the H 2B cap. The returning worker exemption also applies. Workers previously counted against the cap in the same period (fiscal year) that the job duties begin aren’t affected by the cap.
However, the returning worker exemption works only when the employer stipulates their names and avers that they were counted.
What is a Temporary Need?
The H 2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf as the first step to establish employer’s temporary need. Other steps include:
- Filing a job order with SWA
- Filing Form ETA 9142B
- Applying for temporary employment certification with the DOL and Chicago National Processing Center
- Fulfilling the corresponding employment rule
The prospective worker must be coming to the United States temporarily to perform services or labor falling under specific criteria.
Approving a Different Type of Temporary Need than the Need Listed on the Temporary Labor Certification (TLC)
USCIS immigration services will allow filing a H 2B petition for workers when it is proven that the need for workers is a one-time event, a seasonal requirement, a peak load requirement, or intermittent need.
Since approved temporary labor certifications are advisory, they allow the USCIS to approve petitions when its determinations about the type of temporary need of the petitioners differ based on the department of labor and homeland security requirements.
Temporary Needs Must End in the Near, Definable Future
Petitioners will have to prove the employer will only require H 2B workers for a short period which would be considered a definable future. Usually, the minimum time required should not exceed one year.
It is important that USCIS ensures that it doesn’t extend the validity of H 2B documents beyond the period of validity of a TLC. The temporary need can, however, be temporary for up to three years.
In some cases, a petition can be approved even if it covers a continuous period of at least 3 years.
Workers and the H 2B Program
Although regulation requires employers to give all H 2B jobs to U.S. workers before hiring foreign workers, Americans often do not respond. Often U.S. workers work similar types of jobs to H 2B workers.
However, the H 2B process is only effective if an employer has the security of having exhausted the local supply of labor. It is also requirement that the H 2B program doesn’t adversely affect working conditions of similarly employed U.S. citizens and economy.
The national unemployment rate and number of employed permanent employees factors heavily in these considerations.
Selected employees are entitled to prevailing wage and other advantages after foreign labor certification.
What is Prevailing Wage?
Prevailing wage entails the benefits, hour division, and average wage accorded to permanent employees in the United States. The base for these considerations is weighted against DOL’s wage. Regulations require employers to pay H 2B visa holders the local average wages.
Employers and the H 2B program
The significant expenditures and uncertainties surrounding the availability of visas have eroded over time. About 6222 U.S. employers filed applications for temporary employment certification in 2019. About 55% of these applications received approval from non-immigrants for the granting of the retraining program. Over time, the application procedures have become harder for employers.
Who is Eligible for H 2B visa program?
The United States is restricting H 2B workers’ eligibility to citizens in 81 states. Companies have to prove any exception on account of unusual skills and qualifications. Mexico dominates the flow with a growing share of visa applications that has grown by 46 per cent in the past decade.
The second most common nationality in 2019 was Jamaican (10 per cent of all people). Most of them were Eastern European countries, including Bulgaria, Serbia and Ukraine. You can access the list of eligible countries here.
Factors that USCIS Considers When Determining Temporary Event
The burden on employers to demonstrate temporary H 2B visa requirements covers seasonal, peak, intermittent and once-in-a-lifetime periods. The employer usually presents contracts, a passport style photo and other relevant documents.
An employer that regularly employs permanent workers has a disadvantage when obtaining an H 2B visa. Furthermore, there shouldn’t be any unemployed persons capable of doing the work in the United States.
What Does Intermittent need mean?
Intermittent needs mean that a petitioner is only intermittently requesting a temporary worker and he or she rarely employs full-time or permanent labor.
What is a peak-load need?
These require temporary workers to support permanent workers at peak periods of demand, and the temporary workers will no longer be able to be employed permanently.
What Is Meant By One Time Occurrence?
The first thing to know is that, even if your job is seasonal, you cannot use the H-2B visa program if the work you need done is a “one time occurrence,” an “intermittent” need, or a “peak load need.” If the work you need is of this nature, you must use another type of visa, such as the E-2 or L-1 intracompany transfer visas.
However, “seasonal” does not necessarily mean temporary. For example, many amusement parks are seasonal and therefore qualify for H-2B visas. So do some restaurants and hotels that offer outdoor dining during certain months of the year.
To qualify for an H-2B visa, your company’s business must be classified as seasonal and have a predictable pattern that lasts at least nine months out of the year. Some examples include resorts and landscaping services
One-time occurrence is an event that is not expected to happen again. For H-2B purposes, one-time occurrences are events or circumstances that either:
- Were not reasonably foreseeable; or
- Occurred in a place other than the place of intended employment.
What Is Seasonal need?
With seasonal need, the employer determines whether or not the time spent working or providing service varies according to the time of year, or if the demand varies. The petitioners must decide whether a certain portion of the year requires no additional labour. The portion of the year must not include holidays for permanently employed employees and must remain predictable and nonchanging for the duration of the year.
A seasonal need exists if the employer’s business activity is tied to a season of the year by an event or pattern and if there are predictable dates during which the service or labor must be performed based on those seasonal conditions. Generally, temporary employment lasting less than 10 months will be considered seasonal;
However, in certain industries, employment lasting less than 9 months will be considered seasonal. To qualify as seasonal, an employer’s need for workers must occur with some regularity each year.
Does H2B visa have a grace period?
The United States government should provide an approved ‘grace period’ to workers seeking temporary jobs after completing H 2A, and H 2B work and the job must start immediately after a petition is filed.
Duration of stay
H 2B visa holders have a term of stay of nine months for “unprecedented” events. Generally, a temporary job may be extended for a maximum of three-year stay, although this is a unique situation. Each H 2B visa extension is usually a year and is judged on is own merits. A H 2B visa holder doesn’t have permanent residence in the United States. They are in the country on temporary immigration status.
Can my family members and dependent spouses join me in the United States under H 2B?
Yes, but only if you are a returning worker who is otherwise qualified for the returning worker exemption. Family members of returning workers are entitled to receive H 4 temporary visas.
Under the returning worker exemption, your spouse and children may apply for admission to the United States as non-immigrants in H 4 status even if they did not accompany you to the United States previously or have not maintained their H 4 status. Children must be unmarried and under 21 years of age at the time they apply.
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