An H2b Visa avails employers the opportunity to hire foreign workers to fill temporary nonagricultural job positions such as Landscaping, grounds maintenance, construction, restaurant/hospitality, maintenance, golf, manufacturing, processing, and other specialty services firms.
Due to the temporary nature of the H2B Visa, knowing the stay period of an H2B worker becomes necessary. So how do you determine the longevity of the temporary period?. Are there exceptions to the period of an H2B worker?
Generally, an H2B worker can only stay for a maximum of three years, although the authorized time is stated on the temporary labor certificate. However, if the employer wants the worker to return for work the following year, the employer can request that USCIS renew the visa.
Tell me the meaning of H-2B Visa in practice?
- An H-2B visa is a type of work visa that allows employers to hire temporary workers who are foreigners to fill temporary nonagricultural services positions. Examples of the Jobs include Landscaping, grounds maintenance, construction, restaurant/hospitality, maintenance, golf, manufacturing, processing, and other specialty services firms.
- Addressing shortages of workers in specific fields for a fleeting season led to the implementation of H2B workers. The job must be temporary, seasonal, peak load need, or intermittent.
- However, the approval of the visa is dependent on the fact U.S. workers are not available for the job, therefore, the need for foreign nationals. Therefore, employers must first consider U.S. workers as mandated by the rule of the United States Department of Labor. Among other things, it requires employers to confirm that there are no U.S. citizens capable of doing the job.
- This process necessitates first looking to recruit U.S. workers and then ensuring that no one is qualified for the job before the employer can hire foreign nationals; the process must not adversely affect U.S workers.
The meaning of Temporary need
Employments are considered temporary for the H-2B program if they fall into one of the following categories:
- Seasonal need: a job is considered seasonal if an event or pattern has traditionally been linked to a specific season of the year. The Petitioner/employer will be clear about the time which the service of the temporary worker would not be needed.
- One-time Occurrence: A one-time occurrence indicates that the employer will not require workers to perform the services or labor in the future, making it more of a one-and-done temporary job.
- Peak load need: The employer regularly employs permanent workers to perform services or labor at the workplace, but the employer needs to supplement its permanent employees seasonally due to a temporary event.
- Intermittent need: The employer does not have permanent, or full-time workers to perform the services or labor but occasionally relies on temporary workers for short periods.
Approval Process of H-2B Visa
The process is in three parts. The first is the temporary labor certification application. After obtaining labor certification from the U.S. Department of Labor, the second step is U.S. Citizenship and Immigration Services approval by submitting a Form I-129 application, Petition for a Non-immigrant Worker. The next step is the consular processing of the H2B Visa.
The third step requires the prospective employer outside the United States to apply for a visa at the embassy or consulate.
Consular Processing for the H-2B Visa
To apply for an H-2B visa, you(H-2B worker) must first complete Form DS-160, Online Nonimmigrant Visa Application, and then pay the appropriate filing fee. Following that, you will receive a confirmation page, which you should print and save. The next step is to make an appointment for a visa interview at the embassy or consulate.
For your H-2B visa interview, you will need the following documents:
- The DS-160 confirmation page;
- A printout of the Form DS-160 that you filled out online;
- Form I-797 approval notice from the USCIS, showing USCIS approval of your Form I-129;
- A valid passport for you and each of your accompanying family members to stamp the H-2B visa and H-4 visas;
- One passport-style photo of each applicant;
- Documents to prove the family relationship between you and any accompanying family members (marriage certificates, birth certificates, etc.).
- Documents proving that you have nonimmigrant intent – in other words, that you intend to return home once your employment concludes. Evidence of homeownership in your home country, or employment waiting for you when you get home, should suffice.
It should be noted that a certified translation must accompany documents written in a language other than English from a reputable translation agency.
Potential H-2B workers who are already in the United States in legal immigration status, on the other hand, do not require a visa and can begin working immediately after receiving USCIS approval. If you are a Canadian citizen living in Canada, you may submit your documents at the U.S. border rather than a U.S. embassy or consulate.
How long will my H2B visa last?
- In general, the stay period of the H-2B visa holder is authorized by the USCIS on the temporary labor certification. A new, temporary labor certification covering the requested period by the employer must accompany the extension of the time application. The H-2B classification allows for a maximum stay of three years.
- A person who has held H-2B nonimmigrant status for a total of three years must leave the United States for three months before applying for readmission as an H-2B nonimmigrant.
- Suppose the worker was in the United States in H-2B status for 18 months or less. In that case, their H-2B time is interrupted if they are outside the United States for at least 45 days but less than 3 months, whereas if the stay is more than 18 months but less than 3 years, the time is interrupted if they stay outside the U.S. is for at least 2 months but less than 3 months.
However, when H-2B time is interrupted, time does not accumulate toward the H-2B worker’s 3-year limit. When they return to the U.S. in H-2B status, the time toward the 3-year limit starts counting from the point where it stopped.
The USCIS also provided for interrupted stay, so if H-2B workers have to leave the country during the period of temporary jobs, the clock stops until the foreign worker returns. If the employer/petitioner requests it, the USCIS calculates the interrupted time.
In addition, the request can be made by a representative of the employer. If a representative makes the request, the representative will file Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, along with Form I-129, Petition for a Nonimmigrant Worker; however, if the Petitioner makes the request personally, the petition will be submitted in Form I-129 along with the evidence, showing itinerary of the foreign worker.
Termination of an H-2B worker’s employment
The employer may terminate the job order with the approval of the certifying officer before the end of the job order. If a worker’s services are no longer required for unforeseeable reasons beyond the employer’s control (for example, fire, weather, other Acts of God, or similar, artificial catastrophic events)
Following termination approval, the employer is required to do the below:
- Meet the three-fourths guarantee until termination. The employer must guarantee to offer the workers employed a total number of work hours equal to at least 75 percent of the workdays every 12 weeks (or every 6 weeks if the job order is less than 120 days) until the date of termination.
- Make reasonable efforts to transfer workers to comparable employment by the Immigration Nationality Act (INA). It can be done by contacting State Workforce Agencies or searching the national job registry. Peradventure, the worker, is not transferred; the employer must provide return transportation to the worker’s home country, regardless of intervening employment.
Can my dependents join me on the H-2B Visa Program?
The H-2B worker’s dependent may accompany the worker to the United States. That is, the spouse and unmarried children of an H-2B worker under the age of 21 may apply for admission in the H-4 nonimmigrant classification.
It should be noted that the family members in H-4 status are not qualified for employment in the United States; they may attend school.
General Requirements for employers Participating in the H-2B program
Employers Participating in the H-2B Program must meet Certain General Requirements, which are as follows;
- H-2B Registration: The DOL must have granted H-2B registration to the employer upon request.
- Wage to be offered: The pay to be provided by the employer must equal or exceed the highest of the prevailing wage, Federal minimum wage, State minimum wage, or local minimum wage, for all hours worked during the entire duration of the job order as indicated in the application.
- Wage to be offered if workers are paid on piece rate, commission, or bonus: The employer guarantees that the salary earned every workweek equals or exceeds the proposed wage. Suppose workers are paid on a piece rate, commission, compensation, or other incentives.
- Necessary Deduction from the H-2B workers’ paycheck: The employer is required by law to make all stipulated deductions from employees’ wages. Other extra deductions must be reasonable and disclosed in the job order.
- Job Nature: The position is an open, full-time, temporary position with at least 35 hours of the workweek.
- Productivity standard: The job order must include minimum productivity standards employees must meet to keep their temporary work.
- Work hours: The employer must guarantee that each 12 weeks, the employees will be employed for a total number of work hours equal to at least 75 percent of the workdays (or each 6 weeks if the job order is less than 120 days).
- Record of earning: Employers must keep accurate records of their employees’ earnings, hours of work offered, and hours worked. Each worker must be paid on or before each payday, with a payslip that shows the hours offered and the hours worked.
- Provision of tools and supplies: The employer must provide all tools, supplies, and equipment needed to perform the duties assigned to workers free of charge or deposit.
- Provision of the work order to the employees: A copy of the job order must be provided to all H-2B and corresponding workers no later than the day work begins.
- Rights and protection of the workers: The employer must post a DOL-provided poster in English detailing H-2B and corresponding workers’ rights and protections in a conspicuous location at each workplace.
- Employees filing compliant: The employer must not (and must not cause another person to) discharge or discriminate against any person who participates in any protected activity such as filing a complaint, testifying, consulting with a workers’ center, community organization, labor union, legal assistance program, or attorney, or exercising any other protected right.
- Receiving Money from H2B worker: The employer, its attorney, agents, or employees are not permitted to ask for or accept payment from the H-2B worker for any activity related to obtaining temporary work certification, including but not limited to the expense of the employer’s attorney or agent fees, application or DHS petition fees, or recruitment costs.
- Contractually prohibiting receiving of money: The employer must contractually prohibit in writing agent or recruiter (or any employee of such agent or recruiter) that employer engages in hiring H-2B workers, from seeking or receiving payments or other compensation from prospective workers. The employer must submit a copy of the Agreement to the Department of Labor. In addition, the identity and location of all individuals working for the agent or recruiter to hire foreign workers must be disclosed.
- Wage and Restriction: Employers must treat the U.S. and foreign workers equally; the wage and working conditions provided for a U.S. worker must not be less favorable than those provided for a foreign worker. Furthermore, restrictions that would not be imposed on a U.S. worker must not be imposed on an H2B worker.
- Recruitment Process: The employer must conduct all required recruitment activities following the regulations to find qualified and available U.S. workers to perform the labor in the job order. This includes accepting State Workforce Agency referrals and hiring all qualified and eligible U.S. workers who apply for the job up to 21 days before the job order begins.
- Non-discrimination of qualified U.S. workers: Any skilled U.S. worker, regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, must be able to apply for the job. U.S. workers who apply for the job may be rejected only for legal, job-related reasons, and the employer must keep track of all rejections.
- Strike or lockout: There must be no strike or lockout at any employer’s worksites within the area of intended employment for which an H-2B certification is sought.
- Laying off similarly-employed U.S. workers: From 120 days before the start of the job order until the end of the job order, the employer can only lay off H-2B workers first before laying off any similarly-employed U.S. worker in the occupation and area of intended employment.
- Listed employment: Unless the employer obtains a new approved application from DOL, the employer may not place any H-2B workers outside the area of intended temporary work or in an occupation not listed on the approved application.
- Employees leaving the job before the end of the job order: If any H-2B or corresponding worker leaves the job for any reason before the end of the job order, the employer must notify the DOL.
- Holding, destroying, or confiscating employees’ passports, visas, and other documents: During employment, the employer, its agents, and attorneys are prohibited from knowingly holding, destroying, or confiscating employees’ passports, visas, or other immigration documents.
- Keeping application documents for three years: For three years, the employer must keep all documents related to the Application and Registration, recruitment-related documents, payroll records, and related documents.
FAQs About H2B
1#Is there an age requirement for H-2B workers?
The minimum age varies depending on the type of employment and restrictions imposed by state and labor laws, but H-2B workers must be at least 18 years old. There is no upper age limit for workers; however, individuals must be physically capable of performing the tasks required.
2#Can my stay be longer than 12 months on the H-2B visa?
Yes, if your stay as an H-2B visa holder was supposed to be no longer than 12 months as authorized by the USCIS on the temporary Labor Certificate, your employer may request a new extension. Applicants will be evaluated strictly on their merits.
3#Can I become a student on the H-2B visa?
Applicants on H2B may pursue recreational or part-time studies, but they may not engage in any study that would interfere with their job.
Could you find out how we can help you?
Herman Legal Group LCC will assist you in determining which visa category is most appropriate for your temporary employment needs. Allow us to help you with your H-2B Visa application. Contact Herman Legal Group, LLC today if you’re ready to get started.
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