Let’s understand the H2B Program structure!
We get how tiresome and complicated the H2B program can become to comprehend. Hence, we, as a firm, have the requisite experience in the know-how of how the structure of the H2B program works and how it allows the U.S.
Employers or U.S. agents who meet certain regulatory requirements to attract/bring in foreign nationals to the United States for the purpose of doing ad-hoc/temporary non-agricultural jobs keeping in view the employment situation.
This program also goes by the name of the guest worker visa program, which is a big name in the area of immigration services. The foreign workers who are hired perform services on an intermittent/peak load/one-time/seasonal basis.
We’ll help you understand this more in the later articles to come. It is crucial to understand why H2B petitions exclude agricultural services. The answer is that the H1A visa program is already in place for agricultural work.
Which Form is filed by the U.S. employer on behalf of the prospective worker?
It is to be carefully taken into consideration that the U.S.
Employer or U.S. agent has to abide by the regulations, and they thereby need to file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the prospective worker. The program also defines certain displacement and recruitment standards which protects the existing U.S. permanent workers.
An employer needs to make sure that he regularly employs permanent workers to carry out the services, and the addition of temporary workers is merely a temporary supplement.
Such additions to staff will not become part of the employer’s regular operation, and the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Guidelines laid by the Department of Labor
The H2B program makes it essential for the employer to attest to the Department of Labor that it will provide a wage that is at par with and or goes beyond the highest of the ongoing wage, the State minimum wage, applicable Federal minimum wage or the local minimum wage to the H2B non-immigrant worker for the occupation in the area of intended employment during the entire period of the permitted H2B labor certification.
Let’s go through the total number of H2B visas that can be issued in a year!
The USCIS has put a particular cap on the number of total H2B visas to be issued at 66,000. The visas are issued on a first-come-first-serve basis.
What are the types of workers who can apply for the H2B visa?
H2B visas can be issued to hire foreign workers from different fields, for example:
- Seasonal hospitality
- Workers engaged in forestry
- Businesses related to construction
- Food packaging industry
- Ski instructors
- Camp counselors
- Business trainers
- Home attendants for terminally ill patients
In addition to the list above, the H2B visa holder can bring a spouse and children (who is/are unmarried and below the age of 21 years) to the United States.
Who qualifies for H2B classification?
In order to be eligible for H2B non-immigrant classification, the petitioner must put forth that the numbers of U.S. workers who are able, qualified and willing to do the ad-hoc/temporary work are not very high in number.
It has already been reiterated that the H2B visas can be issued to seasonal non-agricultural workers, who are both skilled and unskilled, to fill temporary nonagricultural jobs. Considering the employment situation, you must have an underlying job at hand for a position wherein there is a shortage of U.S. workers who are willing or able to take the mentioned job.
A person who wishes to apply for the H2B visa must intend to show that he/she has plans to return at the end of the permitted stay. It is necessary for the beneficiary in question who gets the H2B visa to meet the requisite criteria for labor employment as specified by the Department of Labor. US Citizenship and Immigration Services (USCIS) permits and seeks workers from only selected countries.
Nationals from specific countries have been recognized as eligible to participate in the H-2B visa program by the Secretary of Homeland Security, with the approval of the Secretary of State. The Federal Register publishes it every passing year.
A temporary worker, such as a non-immigrant worker for H2B visa, needs to stay in the US for a certain period of time that is on a seasonal need, peak load need, or a one-time occurrence basis.
Eligibility Criteria for Applicant/Employer
In order to be eligible for the H2B program, an employer/applicant must:
- Have a valid Federal Employer Identification Number (FEIN).
- He can be reached out for employment opportunities that come under the H2B program.
- Have a requisite place/office for the business activities he undertakes.
What documents are required for H2B Visa?
The workers/non-immigrants who wish to attain the H2B visa to be in the US ought to visit the US embassy in their own native country and submit the following documents along with the form:
- First and foremost, a valid current passport
- Secondly, passport-size photographs.
- A printout of the Form DS-160, which is an online form. This is the Online Non-immigrant visa application form which is for temporary travel to the United States.
- Notice of approval for H2B visa or Form I-129.
- Proving evidence that you’ll be exiting the US when your H2B visa expires. This can be shown by proof of ties in the home country and can be in terms of family, property, or an ongoing business activity, thus validating the stay as a temporary event.
- Filing fees It is crucial to note that Form DS-160 has replaced DS-156 & DS-157 into a single form as applicable supporting documentation. It is appropriate to discuss this as well as other factors and regulations governing H2B visa with the Embassy and execute what further they ask you to do.
The processing period for an H-2B visa
The employers ought to provide the requisite amount of time for the proper processing of the H2B visa applications. The timeline for the visa application for a temporary worker goes from up to 6 months before the start date of the employment to not less than 45 days before the employment date.
Can employers put out one petition for multiple workers/employees?
Employers have the privilege to put petition for a number of temporary workers at any particular time. This way, a number of workers can get covered under a single petition instead of a separate petition.
Who can be accompanied by H2B visa holders?
A piece of good news that follows is that all the holders of H 2b visa can be accompanied by their spouses as well as with any of the unmarried children who are below the age of 21 years. The visa type that is issued to them is the H4 visa which remains valid till the time H2B visa exists.
One thing that needs to be taken into account is that the H4 visa holders cannot take up any kind of employment in the United States.
Now, let’s look at how to file the H2B visa
The first step of the H2B visa application begins with the US-based employer. You being the employer, will start with the following steps:
Step 1: Begin and complete a labor certification application
As a petitioner who is also an employer, you request an H2B visa. But first, you need to obtain a temporary labor certification from the Department of Labor.
For more information regarding the temporary labor certification, look at the Foreign Labor Certification, Department of Labor and Foreign Labor Certification, Guam Department of Labor. Moreover, Prevailing Wage Determination (PWD) needs to be obtained from National Prevailing Wage Center.
Step 2: Submit the form I-129 to the USCIS service center
Once you obtain the approved temporary labor certification, you ought to go to the USCIS office to file the Form I-129, which is particularly a dedicated form for ‘Petition for a non-immigrant worker.
With limited exceptions, the petitioner should submit the original temporary labor certification with Form I-129 (It will be beneficial to look at Form I-129 instructions for additional filing requirements).
If the application for a temporary labor certification was processed in DOL’s FLAG system, the petitioner ought to include a printed copy of the electronic one-page “final determination” of the H2B temporary labor certification approval with Form I-129.
Step 3: Alien workers apply for a visa at the US embassy
Last but not the least, the worker(s) who are going to be employed will be required to visit the US embassy in their own native country and apply for the H2B visa.
It is imperative to visit the US Department of State at the embassy or Consulate abroad to seek admission into the US through a US port of entry. You can also attain straight admission to a place where an H2B visa is not required. The processing time for the H2B visa is typically between 60 to 120 days.
Challenges to the H2B visa process
There are a number of experts who have pointed out that H2B visa program contains a lot of challenges. It is said that the H2B program has more than 175 rules which are complex and bureaucratically driven.
They also tend to increase/inflate the labor costs in comparison to the cost which is laid down for the other U.S hires, which are at par with the H2B visa holders. One trend has also come up that the US workers have turned down 93 percent of H2B job offers in the year 2020. In yet another observation, the H2B visas have contributed to a 96 percent downfall in apprehensions of Mexicans crossing the border illegally.
Reach out to us for help
Although a few employers will be able to aid you with the entire H2B visa application process if at all, they regularly hire employees from outside the US. Hiring an attorney for yourself can be a very wise decision in this tedious process, and we are adept at providing affordable and efficient services for your hassle-free experience.
Our Herman Legal Group law firm consists of a remarkable staff of attorneys who can help you decide on which visa category to opt for as well as to sort out the paperwork for the same. Our attorneys can also help you in submitting the application early so that the year doesn’t pass by when you apply and by providing further information regarding the application process.
Schedule a personal consultation with Attorney Richard Herman by calling 1-216-696-6170, or by booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.