H2-B Visa

The H-2B is a nonimmigrant visa for needing US employers to hire foreign nationals to come to the United States to fill temporary nonagricultural jobs. The application for such visas is to be filed and sponsored by needing U.S. employers. It is a short term “seasonal jobs” work visa. The H2B visa does not require any skills or experience in an occupation. The employee must only meet the minimum qualifications for the job that the employer has offered.The US regulations require that, except for Guam, the petitioning employer must first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Department of Labor will review and process all H-2B applications on a first in, first out basis.
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A. To be classified as an H-2B Temporary Worker, the alien employee must be from a country which has a qualified treaty with the U.S.B. The sponsoring and needing U.S. employer must file an application requesting temporary foreign nonagricultural labor certification.

C. The foreign employee must show proof of intent to return to home country on expiration of the visa.

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To employ temporary or seasonal workers, temporary labor certification must be obtained from the U.S. Department of Labor by the employer. Before the United States Citizen and Immigration Services (USCIS) can approve an employer’s petition for such workers, the employer must file an application with the Department of Labor stating that there are not sufficient workers who are able, willing, qualified, and available, and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers. The employer must have made active efforts, such as newspaper advertising in areas of expected labor supply, to engage U.S. workers. The wage or rate of pay must be the same for U.S. workers and H-2B workers. The hourly rate must also be at least as high as the applicable federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher.In addition, the employer must establish that its need for the worker’s labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak load need, or an intermittent need.
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One-Time Occurrence

The petitioning company must establish that it has not employed workers to perform the labor in the past and will not need workers to perform the labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.

Seasonal Need

The petitioning company must establish that the labor is traditionally tied to a season of the year by an event or pattern and is of recurring nature. The periods of time during each year in which the petitioner does not need the labor shall be specified.

Peak-load Need

The petitioning company must establish that it regularly employs permanent workers to perform labor at the place of employment and that it needs to supplement its permanent staff on a temporary basis due to a seasonal or short term demand. It also needs to establish that the temporary additions to staff will not become a part of the petitioner’s regular operation.

Intermittent Need

The petitioning company must establish that it occasionally or intermittently needs temporary workers to perform services or labor for short periods. Also, it has to establish that it has not employed permanent or full-time workers to perform the labor.

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H-2B Visa is generally authorized for no longer than one (1) year. It may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is (3) three years.
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As of January 18, 2012, nationals from the following 58 countries can apply for H-2B status and visa:Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.

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Spouse and unmarried children under 21 of H-2B visa holders can obtain H-4 status and they may stay as long as the H-2B is effective and valid. However, they are not allowed to work on H-4 visas. If any dependent wishes to work, he/she will have to obtain his or her own employment-based temporary status.If the dependent of an H-2B visa holder wishes to study on H-4 visa, he/she may study without having to apply for a separate F-1 student visa.
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The H-2B visas are to be applied through the following steps:(1) The employee must firstly have a job offer from a US employer to perform a temporary job;

(2) The employer must then submit a Temporary Labor Certification Application to the Department of Labor, prior to requesting H-2B classification for H-2B workers;

(3) After receiving a temporary labor certification, the employer must file a Form I-129, Petition for Nonimmigrant Worker, with the USCIS requesting H-2B workers. The Form I-129 must be submitted with the approved temporary labor certification;

(4) If the prospective worker is outside of the United States, he/she must apply with the U.S. Department of State at a U.S. consulate abroad for an H-2B Visa, once the I-129 is approved by USCIS.

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From July 2001 a “Premium Process Program” is implemented for speeding processing of certain non-immigrant employment-based applications. Under this program, if the applicant is willing to pay an additional $1,225.00 “premium” to the USCIS, the USCIS will process the application within 15 days after its receipt of the application. The applicant will receive either an approval or a Request for Additional Evidence within 15 days after USCIS receives the application. H-2B is one of the categories that can apply for premium processing.
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H-2B applications are subject to a statutory numerical limit, or “quota cap”, on the total number of aliens who may be issued a visa or otherwise provided H-2B status. Currently, the H-2B quota cap is of 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.People who are exempt of the quota cap:

An H-2B visa holder who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 are not counted against this cap. In addition, petitions for the following types of workers are exempt of the H-2B cap:

a. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing;

b. From November 28, 2009 until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam.

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The status of H-2B itself does not lead to permanent residency. To apply for permanent residency while on H-2B visa, the alien will have to go through another path, either family-based or employment-based immigration. For route to permanent residency, please refer to other section of our site.
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