H-2B: How Do you define “Seasonal” or “Temporary” Need?

Immigration Guides | Richard Herman

What You Need to Know about H-2B program Qualifications?

The seasonal rush is nigh and you’re wondering where you’ll get the employees you need. You ask a fellow employer how they do it and they tell you about the H-2B program.

Their idea is illuminating but you can’t tell if your business has seasonal or temporary need. First, you’ll need to understand what the H 2B program is.

The H-2B program is the religious “go-to” for employers seeking to hire foreign nationals coming to the United States to fill temporary nonagricultural jobs.

H-2B visas demand a considerable investment since obtaining them can involve multiple agencies at both the federal and state governments.

They are also the only nonimmigrant visas that necessitate an employer to conduct a test on the labor market before obtaining a temporary labor certification. If a H-2B visa will adversely affect the United States government permanent employees’ working conditions, then it won’t be granted.

What is an H-2B Visa?

The H-2B non-agricultural temporary worker program allows U.S. employers or U.S. agents who meet specific regulatory requirements 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 a Nonimmigrant Worker, on a prospective worker’s behalf.

To attain this, the employer must first obtain a certified Labor Condition Application (LCA) from the US Department of Labor before applying for an H2B visa with the US Citizenship and Immigration Services (USCIS).

What is the difference between H-2B and H-1B?

The H-2B visa program is the lesser-known brother of the H 1B. It’s an employment-based, non-immigrant visa for foreign nationals who want to temporarily work in the U.S.

H-2B visas are offered on a first-come, first-serve basis and there are only 66,000 available each year. Unlike H 1Bs, there’s no lottery for applicants.

The visas are split into two halves: 33,000 for people starting jobs in the first half of the fiscal year (Oct 1 – Mar 31) and 33,000 for people starting jobs in the second half (April 1 – Sept 30).

However, the Department of Labor and Homeland Security on January 28, 2022, published a joint temporary final rule increasing the cap on H-2B visas by up to 20000 fy2022 for employment offers with start dates on or before March 2022.

Employers must apply for workers to receive an H-2B visa before they can start working at their company. The process takes about 4 months from start to finish.

H 2B eligible countries list

The application for H 2B visas can only be granted for citizens of countries designated by a Department of State to participate under H 2B programs. Homeland Security publishes the list of eligible H 2B countries on its website. Applicants will be selected one year after their submission. Find out the eligible countries here.

Types of job duties supported by H 2B program

The seasonal jobs that qualify for the H2B visa are Landscaping and groundskeeping; Forestry, conservation, and logging; All other services except hospitality and food services; Aquaculture (fish farming); Amusement and recreation; Construction; Manufacturing (nondurable goods only); Transportation, tourism and lodging (seasonal).

What’s the difference between agriculture and non-agriculture?

When deciding to apply for an H2 certificate the first question is whether the work is farming or nonfarming. Typically a clear response is provided.

For instance, the production of fruits and vegetables is also clearly agricultural. Jobs like recreation ski instructors, lifeguards/hostesses work primarily non-agricultural. The difference between them is often blurred by occupation convergences.

Regulations under 29 CFR §780.206 define the scope of agriculture as constituting all the steps in production, growing, cultivation, and harvesting horticultural and agricultural commodities.

Similarly, employed workers who plant berry trees or fruit trees not raised by their employers could be considered to be engaging in agriculture if this activity is done in conjunction or as an incident with farming operations on that farm.

Conversely, planting bushes or trees on business, public or residential property is not agriculture when it is done by workers of an employer who did not grow the product.

Therefore, when an employer seeks workers, it is imperative to review H 2A definitions and regulations of “agriculture.”

How Long can you stay in the US with a H 2B Visa?

Typically, the USCIS issues H 2B classification for up to the time specified in the temporary labor certification. USCIS can extend H 2B classification for qualifying employment in periods of up to one year each.

H 2B extension requests must be accompanied by a new, valid temporary labor certification covering the time requested. The H 2B visa is only good for a maximum of 3 years.

Temporary nonagricultural workers who have exhausted the 3-year maximum since their employment start date must depart from the United States and remain uninterrupted for 3 months before they seek readmission with H 2B temporary.

Similarly, time spent under the other H and L designations affects H 2B time. Time that does not count towards your overall stay in the United States is called interrupted stay.

How Do I know if I had an Interrupted Stay?

The USCIS does not calculate your interrupted stay in the same way that you might. In fact, their methods for calculating interruptions can seem downright bizarre to many people who have lived and worked in the U.S. for a significant period of time.

If the USCIS determines that your stay in the United States has been “interrupted” by a trip outside of the country, they will not count your time abroad towards the required six months of physical presence in the country.

This means that if you left for a five-day trip to Canada, and you had been living in the U.S. for five years, those five days would not count towards your continuous presence during that time.

The USCIS uses a wide range of factors to determine whether or not they consider your time outside of the country to be an “interruption” to your residence in the United States. They will consider:

Whether you have filed taxes while outside of the country on an extended visit
The length of your absence from the country
Whether you maintained any property or other ties in the United States while living abroad
Whether you have a return ticket planned
Whether you have close family members living in the country

Can my dependents join me in the US on the H2B Visa Program?

Your relatives could come to the United States if you applied for re-immigrant status under the H-4 Nonimmigrant Classification. Only your married spouse or a non-married child younger than 21 can be granted a dependents visa. When you arrive in the USA your relatives will no longer be able or allowed to obtain employment or obtain an internship. They may remain there for the duration of an authorized residency in the country.

A H 2B visa holder also enjoys all labor privileges in the Fair Labor Standards Act.

What are the Qualification Requirements for the H 2B Visa?

In order to qualify for the H2B Visa Program, the job must be:

Temporary: Temporary jobs are ones that are not permanent and require a foreign worker to perform labor/services of a temporary nature. This includes jobs that are seasonal, peak load, intermittent or one-time occurrences.
Shortage of U.S. Workers: Before they can hire foreign H 2B workers, the employer must make certain attestations about its labor needs, including that there are not enough U.S. workers who are able, willing, and qualified to do the temporary work and hiring foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

How Do you Define Seasonal Need for Temporary Workers?

Immigration law defines temporary need as up to a year or less but the Department of labor changed this to a practice that requests for employment over 10 months and is not temporary unless it is a one-time occurrence.

The following scenarios fall under temporary need:

One time occurrence

Under this requirement, the employer must show:

(1) that he/she has not employed workers for labor or services in the past and that they will not need workers for these services in the future. Or

(2) the employer’s employment situation is otherwise permanent, but a temporary situation has led to the need for a temporary worker (meaning it is a one time occurrence). A one time occurrence is only valid for three years.

Seasonal need

A seasonal need is generally defined as a predictable recurring peak-load period of activity, such as harvesting produce, processing poultry, or cutting timber. A seasonal employer must show that its need for temporary workers is tied to a specific season of the year by a traditional pattern or practice.

Although there is no requirement that the employer demonstrates that it has engaged in the seasonal activity over a minimum number of years, the longer an employer can demonstrate a seasonal need for workers, the stronger its case will be.

What constitutes a seasonal need depends upon the industry involved and the type of labor required for that industry. For example, in the seafood industry, shrimping needs are seasonal because they are tied to the weather patterns that control when shrimp migrate inshore and become available for harvest; harvesting mussels from the sea bed is less seasonal because it occurs year-round.

Similarly, in construction work, concrete finishing work on highways is clearly a temporary event it requires favorable weather conditions (i.e., warm temperatures) and cannot be performed during cold weather months; other types of construction work may be performed year-round (e.g., plumbing).

Peak load need

A peak-load need exists when the services or labor are required to meet predictable or cyclical increases in demand which the employer cannot otherwise meet with its permanent workers. Temporary workers often also experience peak-load needs.

For example, many resort hotels have peak periods during the holiday season in addition to their regular summer season. One test of whether an employer has a peak-load need is whether the employer would still have had such a need absent its seasonal employment. Another test is whether the employment is permanent.

Intermittent need

Intermittent need means that the employer has a recurring need for employees but only needs them during certain times of the year. For example, an employer may need 20 workers from June to August, and then another 10 workers from December to February.

Employers who seek H-2B workers for intermittent need positions must demonstrate that they have not employed a permanent or full-time workforce in the occupation for the period of time for which temporary need is being requested.

Both seasonal need and peak load have their significance when applying for a H 2B visa. An employer and nonimmigrant worker must understand the differences. Most employers get frustrated even before they begin the H 2B application process.

What is H-2B Program Application Process?

Here’s a detailed breakdown of how to apply for a H 2B visa.

Step 1: the department of labor requires the employer to obtain a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC) through ETA Form 9141, an Application for Prevailing Wage Determination.

The Prevailing Wage Determination must be valid either on the date recruitment begins or the date for filing a complete Application for Temporary Employment Certification. Since the Office of Foreign Labor Certification (OFLC) decommissioned electronic filing as of May 2020, the PWD application can be submitted by post to:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
National Prevailing Wage Center
1341 G Street, NW- Suite 201
Washington, DC 20005- 3105
ATTN: PWD Request

Step 2: Pre-filing recruitment by the Employer. This is done through:

Filing a job order no more than 120 calendar days before the employer’s date of need with the State Workforce Agency (SWA) addressing the area of planned employment. The job order must be accessible and available for purposes of recruitment for at least 10 days.
Circulating two print adverts for the employment opportunities. One publication must be on a Sunday.
The job order and print advert must contain the following details:

Employer’s contact details for applications
Geographic location of the employment opportunity
Whether the employers seeking H 2B workers will provide transport to worksite
Job description including job duties, prospective worker’s services and employment period.
Working conditions, wage and hour division, expected start date
That it is a temporary work position and the number of employees needed to perform services.

Step 3: Employer makes the final application and submits the following certifications to the Chicago National Processing Center (NPC):

A populated Application for Temporary Labor Certification (ETA Form 9142B)
ETA Form 9142
A filled recruitment report
Any other supporting documentation. i.e., certification asserting temporary need.

The employer may mail the final application to the Chicago National Processing Center using this address:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604- 2105
ATTN: H 2b program Unit

What are H-2B filing Timelines and Strategies?

Petitioners must know of the strict filing procedures, deadlines, and delays that come with processing a H 2B visa through the Department of State, the USCIS and the Department of Labor.

Before filing the H 2B application with the Department of Labor, one must put forth a Prevailing Wage Determination. Petitioners can expect the Prevailing Wage Request to be pending for a minimum of 30-60 days.

This means that the employer will be up to the 90 day mark before the start date, which is why the least time an employer can take in H 2B procedures is about 150 days. Still, employers should plan an additional 30 to 60 days to begin the initial steps of H 2B filing.

What is the cost of H-2B filing?

To expedite H-2B application, employers pay a Premium Processing Fee of $1500, a $500 anti fraud fee and $460 base filing fees form Form I 129 to received an expedited review of their petition.

Premium processing guarantees results after 15 days of submitting Form I 129. Without this request, USCIS Vermont Service Center and California Service Center process the petition in at least a month. However, requests for additional evidence might delay the process further.

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

H 2B visas have no permanent status for migrant citizens. You have to travel to your country once your job is finished and your permit is expiring. And so your H 2B status can’t be changed directly to green card. But you have other nonimmigrant permits available for you. The first step is to find your employer and then complete an additional Form I129. If you want an immigration visa, you first need to return home and file an emigration application.

Bottom line: Filing H 2B application may be complex and strenuous without the help of a seasoned immigration lawyer. We have been in business for a long time, helping in all facets of immigration law.

Book your appointment with the Richard Herman team today for assistance in any immigration matter.

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