Sixty-six thousand temporary workers join the U.S. workforce every year on H-2B visas. Unlike the H-2A visa, which is for temporary and seasonal agricultural workers, the H-2B visa program targets temporary non-agricultural workers. If you are a foreign national trying to get an H-2B visa, here is everything you need to know about the process of getting one.
H-2B Visa Numerical Limits
Congress has set the limit of foreign workers who can receive an H-2B visa at 66,000 per fiscal year. Of these, 33,000 are allocated for the employment of workers beginning in the first half of the fiscal year (October 1–March 31). The other 33,000 are earmarked for hiring workers starting in the second half of the fiscal year.
If there are any unused H-2B allocations for the first half of the fiscal year, they are carried over to the second half and are available for employees seeking H-2B employees at this time. However, unused H-2B numbers in one fiscal year cannot be carried over from one year to the next.
Qualifying for an H-2B Visa
The employer (petitioner) initiates the H-2B process. The employer can be a sole proprietorship, corporation, or public/private company.
The Employer Requirements
First, the U.S. employer must prove they are legitimate. A genuine employer must be lawfully based in the United States, has an IRS tax I.D. number, and offer a legitimate job opportunity. Once that is established, they must follow two steps before hiring foreign employees. The first is to obtain a Department of Labor (DOL) certification by preparing the following documents:
- An application for H-2B registration with form ETA-9155.
- An application for Prevailing Wage Determination with form ETA-9141
- An application for Temporary Employment Certification with form ETA-9142
For their H-2B request to be accepted, the employer must meet other conditions. They need to prove that they have been unable to find unemployed U.S. workers willing, able, or qualified to do the work. For this, they must undertake a recruitment process where they post ads in local newspapers and other forms of media.
The job ad has to be posted for three consecutive days, and the offer should remain open to U.S. workers until three weeks before the petitioner needs someone to perform the service or labor. The employer must also prove that employing an H-2B worker will not negatively affect the wages and working conditions of other U.S. workers.
To qualify for the certification, the employer will have to send the document proving their failed recruiting effort to the Department of Labor. If approved, the DOL issues the petitioner with a Temporary Labor Certification that is valid for three years, after which they are required to submit a petition to the United States Citizen and Immigration Services (USCIS). This can be accomplished by completing Form I-129 no more than six months and at least 45 days before the petitioner needs the services of an employee.
Once the USCIS approves the petition, they issue Form I-797 to the employer. This form contains the dates for when the employment period begins and when it must end. For the sake of future petitions, the employer has to adhere to the set dates.
The employer must also prove that the foreign worker(s) will be filling temporary positions. The need will be considered temporary if it is any of the following:
a) A one-time occurrence
A one-time occurrence means that the job position is usually permanent, but an event has created the need for a temporary worker. It can also mean that the employer has not needed workers to perform the labor or service in the past and will not need any in the future.
b) Seasonal need
Seasonal need service or labor is usually tied to a period of the year by an event or pattern and is typically recurring. If the need is unpredictable and subject to change, an employer cannot claim seasonal demand.
c) Peak load or need
An employer can also initiate an H-2B process in times of peak load or need. They must show that they have permanent employees in the workplace and need to temporarily supplement their permanent staff due to seasonal or short-term demand. On top of that, the petitioner also needs to prove that these temporary additions will not become part of their regular operation.
d) Intermittent need
A petitioner can also claim an intermittent need to hire foreign workers on an H-2B visa. To be accepted, the employer must prove that they have yet to employ permanent workers and occasionally need temporary workers in their place of employment for short periods.
On top of these, employers also have responsibilities towards their foreign workers, the first being fair wages. The wages must not be lower than they would pay for U.S. workers. Therefore, an employer should consult with the DOL to determine the fair hourly wage for their foreign workers.
Another responsibility is transportation for their employees, especially if there is a significant distance between their residence and workplace. If this is impossible and the employee has to cover their transportation expenses, the employer must reimburse the employee when the employment contract ends.
An employer should also provide three meals a day for as long as the contract runs. However, they retain the right to deduct a fee from the employee’s wages if they provide the meals. If the employer cannot provide meals, they must facilitate cooking facilities for the employee to cook their meals.
Once sponsored by an employer and provided with an opportunity to work in the U.S. for a set time, foreign employees can apply for their H-2B visa. However, the position must be in the non-agricultural sector. Industries that qualify to hire foreign workers on an H-2B basis include cruise ships, hospitality, construction, retail stores, warehouses, sports and athletics, landscaping, maintenance and janitorial, etc. These are the industries that tend to experience temporary demand surges for labour in the U.S.
Other requirements include;
- The employee must prove that they intend to return to their native country once their H-2B visa expires
- To be eligible for the visa, the employee must prove that they are skilled in the job they have been offered
- They must be from a country included in the list of countries whose citizens are eligible for H-2B visas. This list was prepared by the Department of Homeland Security and is updated every year. Employers can also ask to add other countries.
If you receive a job offer, but your country is not on the list, you can still get hired if your employer sends a written request to the DHS, provide your documents, and prove that you will benefit the United States by receiving an H-2B visa. The Department of Homeland Security will then assess the request and decide if granting you an H-2B visa is worthwhile.
Once your potential employer has all the required approvals and certifications, you can apply for an H-2B visa. You have to present the following documents to the U.S. consulate in your home country:
- Online Form DS-160 and the receipt
- If male between ages 16 and 45, form DS-157
- Form DS-156
- A visa application fee of $190 (you can translate that to your local currency)
- A valid passport
- Copies of USCIS-approved Form I-797 and Form I-129
- Proof that you intend to return to your home country after your period of employment is over. You can present your property deed or apartment lease as bond
If all of the documents are in order, the consulate will plan an interview where you will be assessed. If judged fit to have an H-2B visa, your visa application will be approved, after which you can file for visa stamping and start making travel arrangements. You are only allowed to travel to the U.S. within the dates stated in Form-I797.
How Long is an H-2B Visa Valid?
The H-2B visa is valid for a maximum of one year. Therefore, if you have an H-2B visa, you can stay in the U.S. for the period agreed in the I-797, but not longer than a year. However, the H-2B visa can be extended by the employer only if there is a valid reason. For the visa, there are two extensions available, each year long. Therefore, an H-2B visa holder can stay in the country for a maximum of three years. After the period expires, the holder is expected to remain in their home country for at least three months before applying for another H-2B visa.
Note that once you get the visa, the time spent outside the United States still counts.
Can an H-2B visa holder bring their family to the U.S.?
The law permits an H-2B visa holder to bring their spouse and children under 21yearsinto the U.S. The family members will be required to apply for an H-4 visa, which allows them to enroll in academic courses but not work. However, if they find an employer willing to sponsor them, they can change their H-4 status.
Can I change my H-2B visa status?
An H-2B visa holder in the U.S. can file for a status change in a couple of instances:
- If they find a job that requires another visa, their new employer can petition for them to change their visa status. For instance, a temporary agricultural position will change their visa status to H-2A.
- If they find a new temporary non-agricultural job, their new employee must follow the necessary procedure to obtain an H-2B permit.
A holder can also apply for employment or family-based Green Cards.
Can my H-2B visa get rejected?
Yes. The U.S. could deny your H-2B visa if the employer didn’t meet the set requirements for hiring a foreign worker.