The purpose of the H2B visa is to allow foreign nationals to come to the U.S. in order to perform non-agricultural work on a seasonal or temporary basis. This page was designed to offer general information to employers and foreign nationals alike, and help them decide if they should consult with an immigration attorney. The following topics are covered on this page:
- H-2B visa basics
- Labor certification
- Applying for an H2B visa
- Designated countries
- Can my family join me?
- Do I need an immigration attorney?
It’s important to keep in mind that while this page discusses certain subjects related to immigration law, it is not intended as a substitute for speaking directly with a qualified attorney. If you have questions about an employee’s eligibility for an H2B visa, or are interested in obtaining one for yourself, contact our office for more information.
H2B Visa Basics
In order to qualify for an H2B visa, a foreign worker must have a non-agricultural job offer to work in the U.S., and an employer willing to sponsor the worker’s petition for a visa. The work being offered must arise from one of the following employment needs:
Peakload need – the employer requires additional full-time labor to supplement existing permanent and temporary staff. Foreign labor brought to work under H-2B status cannot be hired to work on a permanent basis. The employer must also be able to demonstrate regular employment of permanent workers.
Intermittent need – foreign labor is required for short periods of time, intermittently, in a position not normally filled by full-time employees. The employer must demonstrate a need for temporary workers.
Seasonal need – typically involves a job associated with a recurring, non-agricultural event that happens with regularity.
One-time need – In order to qualify under this classification, the employer must demonstrate an employment position that is normally permanent but has been disrupted by an event of short duration, which has caused the need for a temporary worker.
In addition to showing the specific need for temporary workers, the employer must also be able to cover the transportation cost of the foreign national’s trip home should he or she be dismissed from the position before the expiration of the visa.
The number of H-2B visas issued is capped at 66,000 per fiscal year with 33,000 visas going to persons employed within the first half of the fiscal year (October 1-March 31).
According to a February 2016 article by the Hill, the landscape industry is the largest employer of H2B workers, but other frequent employers include the crabbing and fishing industry, as well as ski resorts.
Before a foreign worker can apply for an H-2B visa, the employer must first apply for temporary labor certification through the U.S. Department of Labor. This step is designed to ensure that there are not enough U.S. workers willing, able and qualified to do the available temporary work. Labor certification demonstrates that H2B workers won’t adversely affect the wages and working conditions of similarly employed U.S. workers.
Applying for an H2B visa
Once this petition is approved, the foreign worker living abroad can apply for an H-2B visa at a U.S. Embassy or consulate, then seek admittance into the country. The visa is issued by the US Department of State.
The amount of time a foreign worker will be eligible to stay in the U.S. varies and is often less than a year. However, extensions of one-year increments are granted, in some cases up to three years. Each time an extension is requested, the employer-sponsor will have to file a new temporary labor certification. H2B workers granted the maximum extensions must leave the country and wait at least three months before seeking readmission under H-2B status.
The H-2B visa program is generally only available to applicants from a list of countries specified by the Secretary of Homeland Security. For a list of eligible countries, click on this link.
Residents from countries not designated by the Secretary of Homeland Security might still be eligible to participate in the H2B visa program. However, approval depends on whether the worker’s applicable skills are unavailable from the pool of applicants hailing from designated countries. An applicant from a non-designated country might also have difficulties if the country of origin has a high rate of visa fraud or abuse. If you have questions about your eligibility to participate in the H2B visa program, contact our office for more information.
Can My Family Join Me?
Generally speaking, yes. Spouses and unmarried children (less than 21 years of age) may accompany H-2B visa holders under H-4 status. Family members are not eligible to seek employment in the U.S. under this status.
Do I Need An Immigration Attorney?
Employers and foreign nationals interested in obtaining temporary visas are not required to retain the services of a lawyer in order to begin the application process. However, immigration law is complex and subtle. With multiple federal agencies and filing times, the process can be overwhelming. A qualified immigration lawyer will help you navigate the process and avoid costly or time-consuming filing errors. If you’d like to know how our immigration attorney can help you, contact our office for more information.