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The H-2B nonimmigrant work visa provides a method for United States employers and agents to obtain the services of foreign nationals to fill their temporary needs for additional workers.
The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year. After one year, the visa may be extended for two more years for a total of three years. However, extension applications are carefully scrutinized. Most stays authorized on H-2B visas will be for a period of less than one year to correspond with the peak or seasonal needs of a business.
The Department of Labor recognizes four circumstances in which there is a temporary need for workers: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence. The employer promises to employ the worker for a limited period of time, but the employer must also prove that its need for the worker is temporary. There is no set rule for how lengthy a season can be, but most Labor Department offices will consider seasons of more than nine or ten months per year to be permanent employment and not seasonal employment.
Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are foreign medical graduates seeking to perform work in medical areas and agricultural workers. The visa is often used for entertainers and athletes who cannot meet the requirements of the O and P visa categories.
United States employers and agents are allowed to petition for temporary H-2B workers. United States agents are permitted to file petitions for self-employed aliens, aliens who will have various employers, and for aliens who will be employed by foreign employers. When the H-2B worker is self-employed, there must be a contract between the agent and the worker describing the wages and terms of employment. The agent must also provide an inclusive itinerary of the intended employment. When several employers are involved, the agent must provide the dates of the proposed employment, the names and addresses of the employers, and the sites where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent’s authority to act on behalf of the prospective employer.
The employer must first obtain a labor certification by the Department of Labor in order for U.S. Citizenship and Immigration Services to issue an H-2B visa. The Department of Labor must determine that there are no unemployed, qualified and immediately available United States workers for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of United States workers. The Department of Labor requires the employer to conduct a recruitment campaign. Before starting this recruitment campaign, the employer or his agent should contact the state employment office to determine what type of recruiting efforts will be required in the employer’s area. It is also important to note that a United States worker who is otherwise employed, but states willingness to take the position recruited for is not considered unemployed, and, therefore, does not count as an unemployed United States worker.
There is a 66,000 annual cap on H-2B visas. The H-2B visa has two allocation periods each year:
- The first allocation period includes start dates beginning October 1st of each year, and ending March 31st of the following year.
- The second allocation period includes start dates beginning April 1st of each year and ending September 30th of the following year.
Not every H-2B applicant is subject to the cap. Visas will still be available for applicants who want to extend their stay, change the terms of their employment and to change or add employers. Timing issues become extremely important with H-2B visas due to the cap. The forms that must be filed with the state employment service office cannot be filed more than 120 days prior to the employer’s need for the H-2B workers. The advertising that will be required by each state employment service office must also be completed within these 120 days.
Steps to an H-2B visa:
- File for the prevailing wage with the state in which the job is located;
- File the Labor Certification Forms with the state employment service office;
- Perform the recruitment that is required;
- File the approved labor certification or a notification that certification cannot be made with the U.S. Citizenship and Immigration Services along with an I-129 application along with documentation that the beneficiary qualifies for the job offer and a statement describing in detail the temporary conditions that make it necessary to bring the beneficiary to the United States; and
- Present the approved H-2B petition to the consulate in the beneficiary’s home country 10 days prior to the start date of the visa.
Contact an Immigration Lawyer in Pittsburgh or Philadelphia, Pennsylvania, New York
To speak to an immigration attorney about your immigration goals, including obtaining a work visa in Pittsburgh, Philadelphia, Pennsylvania, West Virginia, Ohio, New York, New Jersey, Atlanta, Virginia or anywhere in the United States, we welcome you to contact us online or call 412-291-4400 | 215-880-4977 | 347-839-1700 . Free consultations are available. We represent clients throughout the United States, including Pittsburgh and Philadelphia, Pennsylvania, West Virginia, Western Pennsylvania, Eastern Ohio, Allegheny County, Philadelphia County and worldwide in Korea, Africa, India, and Pakistan.
*Past results cannot predict future results due to variations in the fact patterns of cases.