employment2

H-2B Seasonal workers

H2B VISA / H2B Seasonal Worker Visa

While only a few H2B Visas are issued each year, the visa is nonetheless useful. The H2B visa enables U.S. businesses and agents to fill temporary needs for nonimmigrant workers. Many individuals unable to obtain an O or P Visa may apply for this visa. However, medical graduates are not allowed to apply for this visa. The visa is not self-petitioned, which means you will need an employer to sponsor you.

Your spouse and unmarried children under the age of 21 are allowed to join you in the U.S. under H4 status. Dependents are not permitted to work, unless they personally qualify for a work visa.

Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
    • one-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
      • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
      • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.             or
    • seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
      • Traditionally tied to a season of the year by an event or pattern; and
      • Of a recurring nature.

      Note: Employment is not seasonal if the period during which the service or labor is needed is:

      • Unpredictable;
      • Subject to change; or
      • Considered a vacation period for the employer’s permanent employees.          or
  • peakload need – A petitioner claiming a peakload need must show that it:
    • Regularly employs permanent workers to perform the services or labor at the place of employment;
    • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
    • The temporary additions to staff will not become part of the employer’s regular operation.          or
  • intermittent need – A petitioner claiming an intermittent need must show that it:
    • Has not employed permanent or full-time workers to perform the services or labor; and
    • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, and on workers who are exempt from it.

H-2B Program Process

  • Step 1: Petitioner submits temporary labor certification application to DOL.  Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).*  For further information regarding the temporary labor certification application requirements and process.
  • Step 2: Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)
  • Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approved  Form I-129, prospective H-2B workers who are outside the United States must:
    • Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
    • Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry.

* Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip step 1 in the H-2B process.

H-2B Eligible Countries List

Except as noted below, H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice.  Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2014, nationals from the following countries are eligible to participate in the H-2B program:

Argentina Fiji Mexico Slovakia
Australia Grenada Moldova Slovenia
Austria Guatemala Montenegro Solomon Islands
Barbados Haiti Nauru South Africa
Belize Honduras The Netherlands South Korea
Brazil Hungary Nicaragua Spain
Bulgaria Iceland New Zealand Switzerland
Canada Ireland Norway Thailand
Chile Israel Panama Tonga
Costa Rica Italy Papua New Guinea Turkey
Croatia Jamaica Peru Tuvalu
Dominican Republic Japan The Philippines Ukraine
Ecuador Kiribati Poland United Kingdom
El Salvador Latvia Romania Uruguay
Estonia Lithuania Samoa Vanuatu
Ethiopia Macedonia Serbia  

 

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition.

Note: If you request H-2B workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions.  Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays.

Period of Stay

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification.   H-2B classification may be extended for qualifying employment in increments of up to 1 year each.   A new, valid temporary labor certification covering the requested time must accompany each extension request.  The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant.  Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit.

Family of H-2B Workers

Any H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.  Family members are not eligible for employment in the United States while in H-4 status.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:

  • No show: The H-2B worker fails to report to work within 5 work days of the latter of:
    • The employment start date on the H-2B petition; or
    • The start date established by the employer;
  • Abscondment: The H-2B worker  leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
  • Termination: The H-2B worker is terminated prior to the completion of the H-2B labor or services for which he or she was hired; or
  • Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.

Petitioners must include the following information in the employment-related notification:

  1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
  2. The reason for untimely notification and evidence for good cause, if applicable;
  3. The USCIS receipt number of the approved H-2B petition;
  4. The petitioner’s information, including:
    • Name
    • Address
    • Phone number
    • Employer identification number (EIN)
  5. The employer’s information (if different from that of the petitioner):
    • Name
    • Address
    • Phone number
  6. The H-2B worker’s information:
    • Full Name
    • Date of birth
    • Place of birth
    • Last known physical address and phone number

Additionally, to assist USCIS with identification of the H-2B worker, submit the following for each H-2B worker, if available:

  • Social Security Number, and
  • Visa Number