Mark A Ivener, A Law Corporation

H-2B Visas for Temporary Workers

Who Is Eligible

The H-2 nonimmigrant visa is for temporary workers coming to the United States to fill positions which are temporary in nature. Such positions are usually linked with a specific time frame or contract, and are positions which will cease to exist in the foreseeable future. The H-2A category applies to foreign nationals coming to the U.S. to perform agricultural work of a temporary or seasonal nature. The H-2B classification is suitable for athletes or those in the performing arts who have not yet achieved international renown, as well as skilled workers in crafts and trades who are able to perform tasks for which the employer obtains a certification that no U.S. workers are available. The H2B category has a quota of 66,000 per year, with 33,000 H-2B visas available for the first half of each year, and 33,000 available for the second half.

The Four Types of Temporary Need

For the H2B, there are four basic types of temporary need. These are:

  • One-time occurrence: The employer must show that it is experiencing a temporary event, such as a conference or sporting event, and that it has not previously employed workers to fill the position, and will not need such services in the future.
  • Seasonal need: The services are for a fixed and predictable time period, and the employer must specify the time of year when the workers are needed, and the dates the services are not needed.
  • Peak-load need: The employer must show that it regularly employs permanent workers to perform the services but has a temporary need for additional staff because of a short-term demand. The temporary workers must not become a permanent part of the employer’s workforce; that is, the need must not be ongoing.
  • Intermittent need: The employer must demonstrate that it has a need for workers from time to time, but not on an ongoing, regular basis.

For those individuals seeking to perform temporary services in an H-2B capacity, the petition must be filed with the following documentation:

  1. A temporary labor certification from the U.S. Department of Labor (DOL) indicating that qualified U.S. workers are not available, and that employment of the alien foreign national will not adversely affect the wages of working conditions of similarly employed U.S. workers; or
  2. A notice from DOL that such certification cannot be made, along with evidence of the unavailability of U.S. workers, documentation of the prevailing U.S. wage rate, and evidence overcoming each reason why the certification was not granted; and
  3. Copies of evidence, such as employment letters and/or training certificates, documenting that the foreign national met the minimum job requirements stated in the certification when the labor certificate application was submitted to DOL.

How To Apply

Obtaining an H-2B visa is a two-step process. A U.S. employer must first submit an application for a temporary labor certification to the U.S. Department of Labor (DOL). The DOL reviews the application to ensure that there are no adverse effects on the U.S. domestic labor market. It will then issue either a temporary labor certification or a notice that such certification cannot be made. If a labor certification is approved by the DOL, the U.S. employer then files a Form I-129 with supporting documentation with the USCIS Regional Service Center having jurisdiction over the city of the intended place of employment. Once the USCIS approves the H-2 petition, the petition approval is forwarded to a U.S. Consulate, and a visa can then be stamped in the foreign national’s passport.

Documentation Requirements

The documentation required to be filed with the I-129 petition varies depending on the H-2 sub-category, in which the foreign national is seeking to provide temporary services.

Duration of the Visa

An H-2B visa is granted for the validity of the labor certification, or for an initial period of up to one year. The H-2 visa holder’s visa may be renewed for periods of up to 12 months, but the total period of stay may not exceed three years. Individuals for whom extensions are filed are not counted against the annual 66,000 cap discussed above. If H-2 visa holder has remained in the U.S. for the maximum period of time, as stated above, he or she may not seek a change of status, extension, or readmission to the U.S. until he or she has resided outside of the U.S. for a period of six months.

Status Of Spouse And Minor Children

A spouse or unmarried child of an H-2B visa holder is entitled to an H-4 visa, and the same length of stay as the principal. The spouse and dependent minor children cannot accept employment, but can attend school in the United States.