What is Required for an H-2B Visa?

Employment-Based Immigration

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The H-2B program, also known as a guest worker visa program, permits employers to hire foreign workers to come to the United States and perform temporary nonagricultural services on a one-time, seasonal, peak load, or intermittent basis. H-2B petitions, governed by the Interim Final Rule, exclude agricultural services because the H1A visa program, rather than the H-2B visa, is designed to accommodate agricultural work.

What Does the H-2B Visa Mean in Practice?

The H-2B visa category is quite broad in terms of the type of temporary nonagricultural occupations that can qualify for H-2B status. About half of all H-2B visa temporary workers are employed as landscapers, groundskeepers, and forestry workers. The other half work in a variety of occupations including cooks, waiters/waitresses, food processors, housekeepers[DC1], traveling carnival personnel, and even entertainers and athletes.

Duration of Stay

An H-2B visa holder can be granted a term of stay up to nine months (up to a year for “one-time occurrences”). Under the right circumstances, the period of stay of a temporary worker can be extended up to three years, although this is an unusual case. Each H-2B visa extension typically lasts for one year.

Eligibility Requirements for H-2B Classification

To qualify for an H-2B visa, your employer must meet certain requirements, and you must also meet certain requirements.

Employer’s Requirements

The primary requirements for H-2B employers are as follows:

  • The employer must be a US employer.
  • Your employer’s need for your services or labor must be temporary — seasonal, one-time, intermittent, or peak load. Your employer must anticipate needing your services or labor for no more than one year.
  • Your employer must be unable to find a qualified and willing U.S. worker to take the job.

Employee’s Requirements

The primary requirements the employer must meet are as follows:

  • You must be a citizen of a country on the Eligible Countries List (about 80 countries).
  • You must have received a valid, written job offer from your employer.
  • Your experience and education must qualify you for the job.
  • You must intend to return home once your H-2B classification expires.

Temporary Need

The USCIS applies specific meanings to four kinds of temporary employment: “one-time occurrence”, “seasonal”, “peak load” and “intermittent.” on an H-2B visa petition.

  • A one-time occurrence is a job that is normally permanent, but a short-term event has created a temporary vacancy (an unexpected illness, for example). This need has never occurred before and is not anticipated to occur again.
  • A seasonal need is tied to a season of the year (Christmas time, for example) and it must recur periodically. Your employer may not use “seasonal need” to have you substitute for a regular employee who is on vacation or to meet a need whose timing is unpredictable or irregular.
  • A “peak load need” occurs because of increased demand for workers to perform certain activities during a particular season of the year or a short-term spike in demand that is unlikely to recur on a regular basis.
  • An “intermittent need” refers to a demand for which your employer has not employed permanent, full-time workers (whether US citizens or foreign nationals) and for which there is an occasional short-term need.

Approval Process

For most H-2B visa applicants, the approval process is a three-step process – one step for the labor certification application, one step for approval by the US Citizenship and Immigration Services (USCIS) of the US Department of Homeland Security, and one step for a US embassy or consulate abroad to issue an H-2B temporary visa.

Temporary Labor Certification Application

The temporary labor certification process begins when the employer company or organization sends a registration request for H-2B registration to the local State Workforce Agency (SWA), at least 120 calendar days and no more than 150 calendar days before the employee’s start date.

The employer should then:

  • Ask the SWA to determine the prevailing wage;
  • File a job order with the SWA; and
  • File Form ETA 9142B, Application for Temporary Employment Certification (with supporting documents including a copy of the job order) with the US Department of Labor (DOL)’s Chicago National Processing Center.

The employer should attempt to recruit US workers for the position. Only if recruiting efforts are unsuccessful in attracting US applicants who are willing and able to do the job, may the employer receive foreign labor certification. If it is issued, the labor certification will confirm that:

  • There aren’t enough U.S. workers able to perform the H-2B visa services at the time the petition is filed and in the area of intended employment; and
  • Employing you will not adversely affect the employment, wages, or working conditions of similarly employed US workers.

USCIS Approval

After obtaining the labor certification from the US Department of Labor, the petitioner must seek approval from the USCIS by submitting a Form I-129 application — USCIS Form I-129, Petition for a Nonimmigrant Worker plus supporting documentation. Supporting documentation includes the following:

  • The appropriate filing fee;
  • Form I-129H;
  • Copy of temporary labor certification.
  • Evidence that you are qualified for the employment, as stated on the labor certification.
  • Evidence that you are in legal immigration status if you are applying from the United States. Such evidence might include:
    • Copies of your Form W-2; and/or
    • Copy of your Form I-94, passport, or Form I-797

Depending on the circumstances, the USCIS might require further documentation.

Consular Processing for the H-2B Visa

To apply for a visa in H-2B status, you will need to complete Form DS-160, Online Nonimmigrant Visa Application online and pay the appropriate filing fee. You will receive a confirmation page, which you should print out and keep. You will also need to schedule a visa interview appointment at the embassy or consulate, and you will need to bring at least the following documents with you to your H-2B visa interview:

  • 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 onto.
  • One passport-style photo of each applicant;
  • Documents proving the family relationship between you and any accompanying family members (marriage certificate, 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.

Any documents written in a language other than English should be accompanied by a certified translation from an authorized translation agency.

Canadians and Applicants Who are Already in the US

The purpose of submitting an application to a US embassy or consulate abroad is to obtain a visa to enter a port of entry in the United States (the LA International Airport, for example). If you are already in the United States in legal immigration status, you do not need a visa – you can go straight to work once you receive USCIS approval. If you are a Canadian living in Canada, you can submit your documents at the US border instead of at a US embassy or consulate.

Frequently Asked Questions (FAQs)

How Much Does an H-2B Visa Cost?

As of January 2021, the USCIS processing fee for an H-2B petition is $460. If you need to apply for a US visa at an embassy or consulate abroad, the visa fee is $190. Certain other fees might apply, depending on your nationality. If you select Premium Processing, which guarantees a decision on Form I-129 (but not necessarily consular processing) within 15 days, there will be an extra fee of $1,500.

Which of my family members can come with me?

H-2B workers can bring their spouse and unmarried children under 21 years of age to the United States, or they can “follow to join” later, in H-4 status. H-4 status is not granted automatically — you must apply for each family member you wish to accompany you, together with supporting documentation.

How long does it take to process an H-2B visa?

An H-2B typically takes two to four months to process, although it could take longer. Premium processing could significantly shorten the total period of time required to process the H-2B visa petition.

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

There are several important differences between the H-1B and the H-2B visas, including:

  • The H-1B visa requires a college degree or its equivalent. Unlike the H-2B, it is normally used for white-collar occupations.
  • The H-1B visa is granted for three years and can be extended for up to six years, while the H-2B can be granted for as little as a few months or for as long as three years.
  • Unlike the H-2B, the H-1B visa is a “dual intent” visa, which means that you can legally hold an H-2B visa while at the same time seeking a green card.

Can an H-2B visa lead to US citizenship?

Strictly speaking, no. The H-2B visa is not a dual intent visa, meaning that you are expected to return home after your period of stay expires. There are often ways to obtain permanent residence and US citizenship, but they typically require you to leave the US and return under a different visa status.

The Visa Cap

H-2B visa status is subject to an annual quota of 66,000 approvals – 33,000 H-2B visas for employment from October 1 to March 31, and 33,000 H- 2B visas for employment from April 1 to September 30. The H-2B visa is popular—in fact, the visa cap is usually filled every fiscal year. The total number of visa holders, however, is considerably higher than the quota — at any given time over 100,000 people are in the United States in H-2B visa status.

The Returning Worker Exemption

One of the few exceptions to the H-2B visa cap is the returning worker exemption, which began in 2015. Under this exemption, anyone who worked in the US in H-2B visa status during the past three fiscal years is not subject to the annual cap. This exemption greatly increases the number of H-2B visa holders in the United States.

Temporary Measures During the COVID-19 Pandemic

H -2B visa measures were significantly liberalized for several months during the COVID-19 pandemic, for the purpose of enhancing the security of the US food supply chain during the pandemic. The temporary measures allowed new H-2B workers who were already in the US to start work as soon as their application was received by the USCIS. It also allowed certain H-2B workers to stay beyond the 3-year maximum period of stay.

After Approval: Notification Requirements

H-2B employers are required by law to notify the USCIS upon the occurrence of any one of the following events:

  • You fail to show up for work within five days of your scheduled start date;
  • You fail to report to work for five consecutive days without your employer’s consent;
  • You are fired or laid off before completing the H-2B services for which you were hired; or
  • You complete the H-2B services for which you were hired more than 30 days earlier than the completion date specified by your employer in your H-2B petition.

Get the Process Started by Contacting Herman Legal Group, LLC Today

Whether you seek an H-2B visa from abroad, seek to adjust your immigration status to H-2B within the United States, or you represent a company that seeks to bring in H-2B workers from abroad, retaining an experienced H-2B immigration attorney can greatly help you tip the scales in your favor. Contact the Herman Legal Group today by calling 1-800-808-4013, or by filling out our online contact form to schedule a consultation with us.

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