What is an H2B Visa?
The H-2B visa constitutes a pivotal component of the United States' nonimmigrant visa framework, designed to enable U.S. employers to address temporary shortages in their workforce by engaging foreign nationals for non-agricultural positions. This visa category is meticulously regulated to ensure that the employment of foreign workers under H-2B status does not undermine the labor market for U.S. workers.
Key aspects of the H-2B visa include:
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Nature of Employment: The H-2B visa is expressly reserved for temporary employment scenarios, categorically defined as one-time, seasonal, peak load, or intermittent needs that cannot be adequately filled by the domestic workforce.
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Numerical Cap: The H-2B program is subject to an annual cap, with Congress setting the limit at 66,000 visas per fiscal year. This cap is bifurcated into two segments, allocating 33,000 visas for employment beginning in the first half of the fiscal year and the remaining 33,000 for employment commencing in the second half.
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Eligibility Criteria for Employers: To qualify for the program, petitioners must convincingly demonstrate the absence of sufficient U.S. workers who are able, willing, qualified, and available to perform the temporary work. Moreover, it must be shown that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
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Procedural Requirements: The application process involves obtaining a Temporary Labor Certification from the Department of Labor, which verifies the unavailability of U.S. workers and the non-adverse effect on existing wages and conditions. Subsequently, the employer must file Form I-129 with U.S. Citizenship and Immigration Services. Following approval, prospective H-2B workers can apply for their visa.
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Eligibility of Countries: The Department of Homeland Security, in consultation with the Department of State, designates eligible countries whose nationals may participate in the H-2B program. This list is updated annually, reflecting the countries' cooperation in repatriating their citizens and considerations of U.S. interest.
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Duration and Extensions: Initially, H-2B classification is granted for the period of the employer's need, as approved by the Department of Labor, up to a maximum of one year. Extensions may be sought for additional periods, with a cumulative maximum stay of three years. After this period, an individual must depart and remain outside the United States for three uninterrupted months before seeking re-admission under the H-2B program.
As immigration attorneys, our role is to navigate these complex regulatory waters on behalf of our clients, ensuring compliance with all procedural and substantive requirements of the H-2B visa program. Our expertise lies in crafting compelling petitions that meet the stringent criteria set forth by the U.S. government, thereby facilitating the legal entry of foreign nationals to support the temporary needs of U.S. businesses.
What businesses may qualify for H-2B workers?
Businesses across various sectors seeking to augment their workforce through the H-2B visa program must first establish that their need for additional labor is of a temporary nature, as defined by U.S. immigration law. This temporary need must fit into one of the following categories: one-time occurrence, seasonal need, peakload need, or intermittent need. Below, we delineate the industries commonly eligible for the H-2B visa program, along with the legal framework that underpins their qualification:
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Hospitality and Tourism: Entities within this sector, such as hotels, resorts, and tourist attractions, often experience significant fluctuations in demand based on seasonality or specific events, necessitating a temporary increase in staffing levels.
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Landscaping and Groundskeeping: This industry's workload often increases during warmer months, creating a seasonal need for temporary labor to undertake tasks such as planting, maintenance, and landscape construction.
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Construction: Construction firms may qualify for H-2B visas for specific, short-term projects that cannot be staffed adequately through the local labor market, demonstrating a peakload need.
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Amusement Parks and Entertainment Facilities: These businesses face seasonal peaks in demand, requiring additional temporary staff for maintenance, operations, and customer service roles.
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Forestry and Logging: The seasonal nature of planting and harvesting activities in the forestry sector can justify the temporary employment of foreign workers under H-2B visas.
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Retail and Seasonal Sales: Retail businesses may experience peak sales periods, such as the holiday season, necessitating temporary staff for sales, stocking, and customer service positions.
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Carnivals and Fairs: The itinerant and seasonal operation of carnivals and fairs creates a unique need for temporary labor in various roles, from operations to maintenance.
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Sporting Leagues or Events: Organizations hosting seasonal sports events may demonstrate a temporary need for support staff, including grounds maintenance and event management.
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Food Industries: Businesses in seafood processing, for example, may face a seasonal surge in demand, requiring temporary workers for processing, packaging, and distribution tasks.
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Cultural Exchange Programs: While not traditional businesses, organizations facilitating cultural exchange may sponsor H-2B visas for roles supporting these initiatives, provided they can establish the temporary nature of the employment.
For a business to successfully navigate the H-2B visa application process, it is imperative to meticulously demonstrate the temporary need for foreign workers and to affirm that employing such workers will not adversely impact the wages and working conditions of similarly employed U.S. workers. Furthermore, businesses must comply with rigorous labor market testing requirements to prove the unavailability of U.S. workers for the positions in question.
Given the complexities and stringent requirements of the H-2B visa program, businesses frequently seek the expertise of immigration attorneys. Legal professionals play a critical role in advising on compliance with all relevant regulations, assisting in the preparation and submission of the necessary documentation, and providing strategic guidance throughout the application process to enhance the likelihood of success.
H-2B Visa Application Process
The application process for obtaining an H-2B visa starts with the US-based employer. As an employer, you’d have to go through three main steps. These are:
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Prevailing Wage Determination (PWD): The employer initiates the process by requesting a Prevailing Wage Determination from the U.S. Department of Labor (DOL). This step establishes the minimum wage that must be paid to the H-2B workers, ensuring it aligns with wages paid to similarly employed U.S. workers in the area of intended employment.
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Temporary Labor Certification (TLC): Following the PWD, the employer applies for a Temporary Labor Certification, demonstrating the temporary need for foreign labor, undertaking recruitment to test the U.S. labor market, and proving the absence of available U.S. workers for the job.
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Petition with USCIS: With the TLC approved, the employer files Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS), including the labor certification and evidence of eligibility for the program.
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Consular Processing: Once the I-129 petition is approved by USCIS, prospective H-2B workers apply for their visas at a U.S. Embassy or Consulate in their home country, following which they may seek admission to the United States in H-2B status.
Federal H2B Visa Fees
$580.00 I-129 Base Processing Fee Unnamed Beneficiaries or
$1,080.00 I-129 Base Processing Fee Named Beneficiaries
$150.00 H-2B Fraud Prevention Fee
$600.00 Asylum Fee (25+ Full-time employees) or
$300.00 Asylum Fee (<25 Full-time employees)
$1,685.00 Premium processing Fee*
*Optional, but if you want your worker on time this is a must.
These fees are in addition to attorney, transport, and consular processing fees.
H2B Visa Processing Time
Visas are typically processed between 60 days to 120 days, provided you fall within the cap. Applicants submitting on 1st January are given visas so that they can start working in the US starting April 1. Many times the government will release additional visas, this process may be quick or may take months after your scheduled start date.