A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Tuesday, September 10, 2019

H-2B - Temporary Worker Visa

Are you an owner of a restaurant or landscaping business that needs temporary workers for peak season? Or are you are a carnival host or film studio owner who needs to have foreign artists perform in the States temporarily? The H-2B visa may be the answer for you.

The H-2B Visa Program

The H-2B program is designed for U.S. employers to bring foreign workers to the United States to perform temporary non-agricultural labor or services. It cannot be used for permanent positions.  An employer must establish that their need for the services or labor in the U.S. is temporary. "Temporary need" could be seasonal need, peakload need, intermittent need, or a one-time occurrence. To be "temporary", the job opportunities that employers provide can normally only be 9 months or less. The maximum period of stay in H-2B cannot exceed 3 years. 

Moreover, H-2B visa does not require degrees or qualifications. This can open up more options for a petitioner, depending on her needs. For example, a hotel can sponsor H-2B housekeepers to work during peak seasons. On the other hand, a movie studio could petition H-2B for a foreign actor to have him perform in the United States temporarily, instead of the O visa, which requires proof of the beneficiary's extraordinary ability. 

There is a "cap" on the total number of H-2B visas that can be issued. The H-2B cap is currently 66,000 per fiscal year. 33,000 visa numbers are used in the first half (October 1 to March 31) of the fiscal year, and the other 33,000 are used in the second half of the year. The unused numbers from the first half of the fiscal year will be available during the second half of the year. However, the unused numbers at the end of the year will not be carried over to the next fiscal year.

How long can the H-2B Worker Stay?

Generally, H-2B workers may be granted stay in the U.S. for the period of time that the employer requests in the petition. They are also allowed to extend their H-2B status for qualifying employment. The maximum period of stay in H-2B classification is 3 years. An H-2B worker's spouse and minor children can accompany him to the U.S. by seeking admission in H-4 classification.

Once the H-2B worker has spent his 3 years in the United States, he must depart and remain outside the country for an uninterrupted period of 3 months before seeking readmission on H-2B visa.

How to Apply for H-2B Visas? 

An employer needs to file Form I-129 with USCIS to request the H-2B visa for employees. Before filing the I-129, the employer must first apply for temporary employment certificate (TEC) and finish the recruiting process.

The first step is to obtain a prevailing wage from the Department of Labor (DOL). With the prevailing wage determination, an employer is able to submit a job order to State Workforce Agency (SWA) and file TEC simultaneously. The employer can include multiple job opportunities in one labor certificate so long as all the prospective positions are identical.

After filing the job order and labor application, the employer is required to recruit U.S. workers actively. To fulfill the recruiting requirements, the employer needs to  place print advertisements on newspapers, contact previous employees who used to work in the same occupation, notify current employees of the job opportunity, etc. A recruiting report must be submitted upon the end of this process. The number of U.S. workers that the employer successfully recruited should be deducted from the total numbers of H-2B openings requested in the petition.

After USCIS approves the H-2B petition, prospective workers outside the U.S. must apply for an H-2B visa at a U.S. Embassy or Consulate abroad and then seek admission to the United States.

USCIS is now accepting H-2B petitions with anticipated start dates of October 1, 2019 through March 31, 2020. If you anticipate a need for temporary workers visa, this would be a good time to discuss the H-2B visa with an experienced immigration attorney.

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