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.
UPDATE:
3 Day Filing Window
Employers and other interested stakeholders are advised by the Office of Foreign Labor Certification (OFLC) that the three-day filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting a work start date of October 1, 2022 will begin on July 3, 2022 at 12:00 a.m. Eastern Time and will end on July 5, 2022 at 11:59 p.m. Eastern Time.
Follow the timeliness criteria
The Office of Foreign Labor Certification (OFLC) reminds employers and other interested parties that the three-day filing window to submit an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) requesting an October 1, 2022 work start date will open on July 3, 2022 at 12:00 a.m. Eastern Time and close on July 5, 2022 at 11:59 p.m. Eastern Time. This three-day window is the earliest an employer may submit an application for a work start date of October 1, 2022, which is the beginning of the semi-annual visa allocation for the first half of Fiscal Year 2022. Employers requesting start dates on or after October 2, 2022, must comply with the timeliness criteria outlined in 20 CFR 655.15.
Outliers Will be refused
In compliance with regulatory regulations and OFLC’s regular operating procedures, H-2B petitions requesting a work start date of October 1, 2022, that are submitted before to July 3, 2022 at 12:00 a.m. Eastern Time will be refused.
Random Selection
OFLC will randomly allocate to analysts for review and processing any H-2B Visa petitions filed within the three-day filing window (July 3-5, 2022) that request a work start date of October 1, 2022, utilising the randomization techniques published in the Federal Register on March 4, 2019.
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