H-2B Visa for Temporary Non-Agricultural Workers

The H-2B visa is the second type of temporary US work visa within the H-2 category. The H-2B programme is for temporary non-agricultural employees, whereas the H-2A visa is for temporary agricultural workers.

Employers who can prove a temporary need for labour but cannot locate them in the United States are permitted to bring in foreign workers. This is accomplished via H-2B visa sponsors. After being sponsored, foreign workers can then apply for visas and have the option to work in the United States for a defined amount of time.

The H-2B visa positions are intended for certain industries with demand surges and a demonstrated need for additional temporary workers. The following industries are eligible to hire H-2B workers:

  • Hospitality
  • Cruise Vessels
  • Hotels and amusement parks
  • Construction
  • Ski resorts
  • Golf courses
  • Maintenance and cleaning
  • Landscaping
  • Water Parks
  • Warehouses
  • Dining establishments and bars
  • Retail stores
  • Athletics and sports, etc.

The distinction between the H-2A visa and the H-2B visa is not limited to the ineligibility of agricultural workers for the H-2B visa. In addition, the H-2B visa has a quota while the H-2A visa does not. There are a maximum of 66,000 H-2B visas available per fiscal year. There are a fixed number of visas allocated to each fiscal quarter, thus the differentiation becomes even more obvious. From October 1 to March 31, 33,000 H-2B visas are issued throughout the first part of the fiscal year. The remainder, or an additional 33,000, are distributed during the second half of the fiscal year, from April 1 to September 30.

If not all 33,000 visas are issued during the first half of the fiscal year, the remainder can be issued during the second half. Nonetheless, if the annual limit is not met, the difference is not carried over to the following year.

Who can obtain an H-2B visa?

Employers begin the H-2B visa application procedure. Companies in the United States, whether they are public or private, sole proprietorships or corporations, seek to use foreign labour. However, employers must satisfy a few criteria, including:

  • Employers are required to demonstrate that they have looked for U.S. workers, but not enough have done so.
  • That by employing foreign labour, they will not have a negative impact on the pay and working conditions of American employees.
  • That foreigners will fill temporary employment

The Department of Labor (DOL) Temporary Employment Certification, which is described in detail below, satisfies these three requirements. Employers are also responsible for providing the following:

  • Transportation for employees who must travel far from their residence and are unable to return on the same day. If they do not offer transportation promptly, companies should repay employees for the costs at the conclusion of the employment agreement.
  • Three daily meals will be provided for the term of the contract. Employers are permitted to deduct a fee from their employees’ salary if they supply the three meals. If companies do not supply meals, they should provide kitchens where employees can prepare their own meals.
  • Equal wages to those in the United States. Employers should consult with the Department of Labor in order to determine the reasonable hourly rate for foreign workers, which should not be less than what they would pay American employees.

In addition to employers, employees or foreign workers must also meet certain requirements:

  • They must have an offer of employment from a U.S. firm
  • They must demonstrate that they intend to return to their home nation after their visa expires.
  • They must establish their eligibility for an H-2B visa by demonstrating that they are skilled employees for the offered employment.
  • They must be from one of the nations on the H-2B qualified countries list.

The Department of Homeland Security has determined which nationals are eligible to get H-2B visas. The list is updated annually, and employers may request the addition of additional countries.

Beginning November 10, 2021, nationals of the following countries may enroll in the H-2B programme:

If an employer wishes to hire a foreign worker who is not on the list, he or she must supply the following:

  • A request submitted in writing to the Department of Homeland Security
  • Documents pertaining to foreign workers
  • Evidence that employing the worker will benefit the United States

The Department of Homeland Security will then evaluate the request and make a determination. Employers who hire foreign workers from both countries on and off the list should submit two petitions for each group to expedite processing.

 

What are the employer requirements for the H-2B programme?

Employers of the H-2B programme must complete two processes to obtain permission to engage foreign employees for temporary employment purposes.

Get DOL Certification

Employers who wish to hire foreign workers must obtain certification from the Department of Labor. In the event of an H-2B visa, a Temporary Labor Certification is required. Employers must prepare and file the following documents:

  • Application for H-2B registration, ETA-9155 (no more than 150 and no less than 120 days before the worker is needed)
  • Application for Prevailing Wage Determination, Form ETA-9141
  • Application for Temporary Employment Certification, Form ETA-9142 (no more than 90 and no less than 75 days before the worker is needed)

In addition to these procedures, businesses must demonstrate the temporary nature of the position. There are four forms of temporary employment that are eligible:

  • One-time occurrence – meaning that the job roles are typically permanent, but an incident has produced a circumstance in which a temporary worker is required. Another circumstance is when the employer has never employed someone for the role and has no plans to do so in the future, but needs someone immediately.
  • Seasonal demand indicates that there is a current labour shortage because the industry in which the company operates has a conventional seasonal cycle, and not due of unpredictability or because permanent staff are on vacation.
  • Peakload demand entails that the role is typically covered by permanent employees, but additional temporary workers are required due to heightened short-term demand.
  • Intermittent need denotes that the employer does not hire permanent employees for the role, but instead always hires temporary workers for brief durations.

Employers must also demonstrate that they were unable to recruit US workers who were willing, competent, and available to undertake the job. To demonstrate this, they must undergo a recruitment procedure. The recruitment process includes the publication of job advertisements in newspapers and other media. The job advertisements must run for three consecutive days in the publication. In addition, the offer must be made to U.S. workers until 21 days before the business requires the employee’s services.

The employer must then submit proof of their recruitment efforts to the Department of Labor in order to be eligible for certification. Upon approval by the DOL, the Temporary Labor Certification is valid for three years. The employer can then proceed with the subsequent procedures.

Petition submission to USCIS

Next, the petition must be submitted to United States Citizenship and Immigration Services (USCIS). Form I-129 must be submitted no more than six months and no less than forty-five days before the requirement for the personnel. Each employee must submit a separate petition, and petitions cannot be passed to other employees.

If USCIS approves the petition, Form I-797 will be issued to the employer. Form I-797 includes the dates between which an employer may engage a specific person and when the employment must stop. Unless employers comply to the working dates, further petitions may be denied.

What requirements must H-2B employees meet?

After the employer has obtained all necessary approvals and certifications, the employee or foreign worker can apply for an H-2B visa. They require the following items:

  • Form DS-160 online and the receipt
  • Form DS-156
  • Form DS-157 (if male between 16 and 45 years old)
  • $190 Visa application fee
  • Passport
  • A photograph matching Digital Images Requirements for US visa
  • US employer offering employment
  • Copies of USCIS authorizations (Form I-797 and Form I-129)
  • Evidence showing they intend to return to their native country, such as a deed, apartment lease, or future employment commitment.

After that, they will schedule and attend a visa interview. During the interview, the US Embassy will evaluate the applicant’s eligibility for an H-2B visa. If the visa is approved, the employee applies for visa stamping and then arranges travel to the United States.

The employee may enter the United States within the dates specified on Form I-797 for employment purposes.

The H-2 visa is the second non-immigrant visa for employment in the United States. The H-2 visa is intended for two categories of employees:

  • Agricultural temporary workers with an H-2A visa
  • Non-agricultural temporary employees with an H-2B visa

The H-2A visa is for individuals who will perform temporary or seasonal agricultural labour. This indicates that the work is limited to a particular time frame or event. Temporary indicates that the duration of the job is less than one year.

How long does an H-2B visa remain valid?

Since the H-2B visa is transitory, it does not permit stays longer than one year in the United States. Those with an H-2B visa are permitted to stay for the duration specified on their I-797, but no longer than one year. Applicants must also remember that time spent outside the United States counts as H-2B stay once the visa is granted.

However, the H-2B visa can be extended. The business must have a valid justification for needing the temporary foreign worker if they seek an extension. For the H-2B visa, two one-year extensions are permitted. Therefore, an H-2B visa allows a foreign temporary worker to stay in the United States for a maximum of three years.

After three years, H-2B visa holders are permitted to return to their native country for three months before reapplying for the visa.

 

Am I permitted to change my status while on an H-2B visa?

Anyone in the United States on an H-2B visa may file for a change of status. If they find a new H-2B employer, the new company must submit a petition and certification application to USCIS in order to employ the foreign worker.

Additionally, if the H-2B visa holder finds employment that requires other visas, their new employer may petition for them to alter their status. If, for example, the H-2B visa holder obtains a temporary agricultural position that needs an H-2A visa, their new employer must adhere to the H-2A visa processes.

The H-2B visa can also lead to a Green card. H-2B visa holders may apply for employment-based or family-based Green Cards.

 

Why may the U.S. refuse an H-2B visa?

The H-2B visa could be refused for a variety of reasons, including the temporary nature of the occupation. Among the reasons why the H-2B visa could be refused are the following:

  • There were sufficient qualified and willing US individuals to fill the role.
  • The employer altered US employee pay and working conditions.
  • The employer failed to submit requests and paperwork within the required time frame.
  • The firm did not make sufficient attempts to attract American labour.
  • Previously, the employer violated H-2B terms and circumstances.

Are H-2B visa holders permitted to bring their families to the United States?

Anyone with an H-2B visa may bring their spouse and children under the age of 21 with them. The family members must submit an H-4 visa application. Under the H-4 visa, people are permitted to enrol in academic courses but are prohibited from working. However, if an H-4 visa holder finds employment with an employer prepared to sponsor them, they can alter their status if all qualifications are met.

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