- How does the employer establish ‘temporary need’ for H-2B workers?
It is the petitioning employer’s burden to prove that the need for H-2B workers is temporary and is either a one time, seasonal, peak, or intermittent need in the application. To prove the temporary nature of the employer’s need, employer may submit documents like contracts, lists of projects and timeframes, as well as narrative explanations. - What are the benefits of the H-2B temporary nonagricultural workers visa program?
Employers(1) Employer has a solution to temporary, seasonal, or peak labor shortage;(2) Employer can use the program to fill positions vacated suddenly, or created by unforeseeable event;(3) The employer will not have to hire permanent workers to meet temporary need;
(4) The program can be used to fill positions that are not qualified for H-1B application;
Employees
(1) The benefit of temporarily living and working legally in the U.S. and enjoying all employee benefits as other US workers;
(2) The ability to travel freely in and out of the U.S. while on valid H-2B visa;
(3) The ability to bring dependents (spouse and unmarried children under age of 21) to live with in the U.S.;
(4) The minor children can attend public schools in the US tuition-free;
(5) The H2B visa does not require any specific educational background. Employee just need to meet the employer’s minimum qualifications for the job that it has offered.
(6) The possibility of changing jobs and extending stay if a new job offer can be shown;
(7) The possibility of applying for permanent residency by the same or different employer
- What are the requirements for H-2B sponsoring employer?
The H-2B visa employer must meet the following requirement:(a) Be a legitimate business like a sole proprietorship, or a duly organized business entity like a corporation, limited liability company, or a partnership;(b) Have authentic and qualified need for the service of the H-2B employees;(d) File a temporary foreign nonagricultural labor certification to Department of Labor;
(e) File an H-2B application to the USCIS;
- Can agents of employers file H-2B applications for the employers?
Yes, in some limited circumstances, an authorized agent, whether an individual or an entity, may file an application for H-2B. - What are the requirements of the H-2B employees?
(1) With valid passport for issuance of visa;(2) Not subject to any inadmissible ground;(3) If in the US, maintain legal status;(4) Have a valid and H-2B qualified job offer from a U.S. employer;
(5) Have and prove intent to return to home country on expiration of the visa
- What is the maximum length of H2B visa?
The initial grant for the H-2B Labor Certification and visa can be valid for a maximum of one year only. However, the employer can apply to extend the stay at the end of the one-year period. The extended period, again, can be for one year for the longest. The employer can only apply a maximum of two one-year extension for the H-2B employees. The maximum H-2B stay, in other words, is three years. - Can the employer apply H-2B for part time woks?
No. H-2B is strictly for full time work only. Part time employment can not apply for H-2B. - Where should the labor certification for H-2B be filed?
Employers seeking to employ temporary H-2B workers must file an ETA Form 9142, Application for Temporary Employment Certification, Appendix B.1, and its recruitment report to the Chicago National Processing Center (NPC). - Can the employers apply for multiple H-2B employees in one labor certification application?
Yes. When filing an application with the DOL, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed foreign workers as long as each worker is to perform the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment during the same period of employment. - Can the employer or employee transfer the approved labor certification?
No. Labor certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another. - Is there a wage requirement for H-2B employees?Yes. Prior to filing an H-2B application with the Chicago NPC, the employer must first obtain a prevailing wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC). The salary offered to the H-2B employee has to at least match the determined prevailing wage.
- hat are the other requirements for the filing of labor certification for H-2B?
In addition to the prevailing wage determination, the employer should also submit a job order to the State Workforce Agency (SWA) serving the area of intended employment, and publish two print advertisements for the position(s), one of which must be on a Sunday. - What is the requirement for H-2B extension?
If the employer encounters “extraordinary circumstances” at the end of the H-2B period, the employer can based on such unanticipated circumstance apply for extension for the H-2B employees. Certainly, the employer needs to prove the extraordinary circumstance and the continuous need for the service of the H-2B employees. - What are samples of “extraordinary circumstances”?
Extraordinary circumstances can be in many forms like injury to employees, natural disasters, strikes, delay in project, sudden increase in orders or contracts, etc. - Can the employee change from H-2B to other non-immigrant status?
Yes. Like other non-immigrant status, H-2B allows the visa and status holder to apply for change of status as long as the visa holder maintains good H-2B status. - Can the H-2B employee change employment and have the new employer apply H-2B for the employee?
Yes, the H-2B employee, before the expiration or termination of current H-2B status, can change job to a new needing employer and apply for new H-2B through the new employer. For changing the job or employer (like H-2B to H-2A), the new employer must again obtain the temporary labor certification, then file the Form I-129 Petition for Nonimmigrant Worker at the USCIS Regional Service Center with jurisdiction over your residence. - How many times can the employee travel with H-2B visa?
As long as the employee receives visa from the US consulate, the employee can travel unlimitedly with the H-2B visa. In other words, the H-2B employee may travel as many times as needed or desired before the expiration of the visa. There is also no length restriction on the employee’s stay abroad. It should be noted that for any extended period applied to and granted by the USCIS, the employee will need to go to the consulate to obtain the visa for returning to the US once the employee travels out of the US. - What is the timeline for the filing of Labor Certification Application for H-2B?
Time is very sensitive and restrictive for the H-2B temporary labor certification application. For the application, a complete DOL Form ETA-9142 must be filed at least 60 days before the first date on which H2B workers are needed. However, before that, the employer has to engage in recruitment activities trying to find qualified US workers. Such recruitment activities can not be started more than 120 days before the H-2B workers are needed. If the application is duly filed or amended within the required time, Department of Labor will make a certification determination 30 days before the date on which the workers are needed. - Is there a time restriction for the H-2B application?
Yes, the employer can only file the H-2B petition 60 days but not more than 120 days before the service is needed. - If the labor certification application is denied, can the employer re-submit the application?
Yes, the employer can always after revision resubmit the H-2B temporary labor certification application. If an application is not accepted by the DOL regional administrator’s office, the employer can file an amended application within five days of the denial to the regional administrator’s office upon receipt of the non-acceptance notice. - Can the H-2B employee apply for green card?
Yes, the H-2B employee can apply for green card, but not through the H-2B employment.The employee can seek green card through either a qualified family relationship with a US citizen or permanent resident close family members, or through the offer and sponsorship of an employer of a permanent job. In the employment based petition, the employee will have to through the offering employer apply for PERM labor certification and wait for years until the priority date becomes current to be able to finally obtain the green card.
