Applying for an H 2B visa for temporary work in the U.S. follows several U.S. Citizenship and Immigration Services regulations for both the employer and the non immigrant worker. An H 2B visa holder enjoys both employee benefits and restrictions during the validity period of their visa.
Below is all the information about H 2B temporary jobs in the U.S. and the visa holder’s rights and limitations.
What are H 2B visa requirements?
For any H 2B visa application, the employer must ascertain that the need for temporary workers is a temporary need. The employer must demonstrate that the foreign laborers will perform labor in circumstances that fall into the following categories:
- An intermittent need
- A seasonal need
- A one-time occurrence
- A peak load need
The employer demonstrates a temporary need with documents such as project summaries, contracts and other applicable documentation.
What is a Seasonal Job?
Seasonal jobs are traditionally tied to a season of the year or a recurring need.
An intermittent need arises when an employer or job contractor needs temporary laborers to work in a job description where it does not hire permanent workers.
A one-time occurrence is when the employer has never employed workers to perform temporary labor or services and will never need it again. The employer must also demonstrate that it is not an employment situation that would otherwise be permanent but a temporary event for a short period which creates the need for a temporary occurrence.
Lastly, the peak load need denotes a period when H 2B visa holders are needed to assist the permanent employees due to peak demand.
Temporary Labor Certification
To employ seasonal employees, a company must apply for temporary labor certification, Employment and Training Administration (ETA)-90142. A temporary labor certification application is subject to approval by the United States Department of Labor before the employer is allowed to hire employees.
Employers must prove the fact that there aren’t U.S. workers who can provide the work and that hiring foreign laborers will not adversely affect local jobs.
Note: Job contractors miss out on temporary labor certification since their employment offers are for permanent jobs. The application for alien labor certification should be made in a minimum of 60 days, but not more than 120 days before the first day H 2B visa holders will begin working. In certain circumstances, the time period can be waived.
What are the H 2B Employee Benefits?
Foreign workers with H 2B visa classification enjoy the same privileges as the permanent workforce in the same occupation.
The seasonal or temporary laborers enjoy the prevailing wage rate usually determined by the National Prevailing Wage Center. They can also travel freely with the H 2B non immigrant visa without restrictions.
A temporary worker can also change jobs when they find a new employer through a fresh application to USCIS regional service center. To change jobs, an employee needs to file Form ETA 750.
It is also possible to gain permanent residence in the United States after obtaining a green card from USCIS.
Dependent spouses can also join an H 2B visa holder in the U.S. during the specific employment period.
How many H-2B visas are available each year?
Each year, H 2B visas are capped at 66,000 by Congress. 33,000 H 2B visas are issued in the first half of the fiscal year (between October 1 and March 31) and the remaining 33,000 during the second half of the fiscal year (between April 1 and September 30).
In March 2018, Congress passed the spending bill that allows additional H 2B visas with the upshot of doubling the number of visas issued in the previous year. However, additional H 2B are contingent on employer need.
Who is eligible for an H-2B visa?
The H-2B Visa is issued to workers who work at a non-agricultural institution to obtain an employment visa. The visa is available to foreign nationals who have come to America to perform temporary work at one-time, seasonal peak or intermittent periods.
Employers must comply with positive recruitment requirements in their application, including abiding by the prevailing wage, conditions, and benefits requirements.
H 2B: Employee Requirements
Prospective H 2B visa holders must meet the following requirements:
- Be a citizen of an eligible country. Find the complete list of eligible countries here.
- Provide a Notice of Approval for H 2B from the employer. It must be approved before a foreign national is considered for H 2B classification.
- Provide evidence that demonstrates they will return to their home country when their visa expires.
- Provide all relevant information and documentation, including a passport-style photo, application fees and foreign passports. The cost for applying for H 2B is estimated at $190.
- A prospective employee must have a valid job offer in the category of temporary or seasonal work, which is non-agricultural based.
Studying Under H 2B Visa Classification
H 2B visa holders can utilize any benefits of the classification during their visa validity. They are permitted to travel in and out of the U.S. and accept a more lucrative job offer.
H 2B workers can also undertake part-time studies in the U.S. if it does not interfere with their work responsibilities. H 2B visa holders cannot engage in full-time academic endeavors as a rule of thumb.
Duration of stay for H 2B temporary workers
H 2B visa holders can stay in America while employed as indicated in Form ETA-750A. The initial date is 1-3 years, and you might get an extension for up to 3 years. In case of extraordinary circumstances, you may apply for an extended visa. Each application is reviewed, and decisions are taken relying upon its merit. If you are a H 2B visa holder, you can apply for a stay extension, but it needs to be valid to be granted.
Can my stay be longer than 12 months on the H-2B visa?
Whenever an employer needs an employee temporarily for longer periods, they may be eligible by the employer for granting an extension of the visa. All extension applications have to be evaluated individually.
H-2B Dependents: Can My dependents join me in the U.S.?
An H-2B visa dependent receives certain benefits or restrictions. A spouse or unmarried children under 21 years can be granted an H-4 visa – meaning that they may stay in the U.S. for the entire H 2B validity period.
While in the U.S., they can continue their education without needing to apply for an F1 Visa. However, they cannot get a job unless they hold an H4 visa.
If they seek employment in the U.S., they must make fresh applications for a work visa.
Can my dependents study on their H-4 visas?
Holders of dependent visas may study in the USA but do not have to apply in person.
Can I change the status on H-2B?
Yes, it is possible to change an H2B visa status. If you want to change jobs or employers (e.g. H-2B to H-2A), have your new employer send your application for a temporary job to an immigration services center.
Note: The H 2B certification issued for employment is not issued to workers but to the employer, meaning it is not transferable from one employer to another. Certification can only be granted in certain job opportunities, by a certain number of employees or based on specific job periods.
Obtaining a Green card with H 2B Classification
H 2B workers can obtain a green card through several avenues such as family, employment, or diversity immigrant visas.
Do You Need Help With Your H 2B Visa Application?
You are not alone. A little professional guidance can help you save money and time.
Let us put our skills to work for you. We can analyze your case, identify the available options, and help you decide the safest, most cost-effective and quickest route to success
Contact the Herman Legal Group, a U.S. immigration law firm with over 26 years of experience in representing individuals, families and companies in all aspects of immigration, in all 50 states and around the world.
Schedule a consult with one of the experienced immigration lawyers at Herman Legal Group by calling 1-216-696-6170 or booking online. Consultations can be conducted by zoom, skype, WhatsApp, facetime, or in-office.