The H2B program is for US employers and agencies that allow them to hire foreign nationals in the United States for a temporary non-agricultural jobs. The H2B Visa requires that US employers or agents requires meet specific regulatory needs and file the Form I-129 for non-immigration workers on the worker’s behalf.
Qualification criteria for H2B Visa
In order to qualify the H2B classification of a non-immigrant, the petitioner should be able to prove that:
- There are not many US workers who hold the qualification and skills to do the work.
- There will not be any adverse effect on the wages of the US employed workers.
- The employer has a temporary need for the labour. By the term “temporary,” we mean that the employment should be a one-time occurrence.
- The employment situation is a temporary event and not permanent.
- The unemployed workers in the past will not be required in the future for the same work.
Examples of H-2B jobs include:
- Construction workers
- Hotel staff
- Amusement park workers
Other qualification possibilities
Another possibility may be a seasonal requirement of labor. Every year, there may be a need for additional labor or seasonal workers. In case of unpredictable circumstances or if the employment demand is subject to change, one can still invite foreign nationals to work in the US. One may also consider employing temporary workers in the place of permanent employees when they are on vacation.
Another possibility is when there is a peak load requirement, and the regular employees are not sufficient enough to generate output. Thus, one can ask for temporary supplement resources. However, these temporary additions should not be a part of the regular operations.
In case of an occasional need, where the employer is able to show that he or she has not employed full-time workers or proved that they occasionally need temporary workers for a short period allows them to offer H2B visas.
H2B Annual Cap
The H2B Annual Cap is the statutory numerical limit on how many H-2B visas can be issued in a single fiscal year. Currently, the H-2B cap is 66,000 every financial year where not more than 33,000 can be employed in the first half of the year and 33,000 in the latter half.
The H2B Program Process
- The process starts with the petitioner applying for a temporary labour certification application to DOL. The petitioner then files the Form I-129 with USCIS along with the temporary labour certification form.
- Consequently, the workers outside the US will apply for visa and admission.
- On approval of the Form I-129 from USCIS, the prospective workers can apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy. They may also get direct admission to the US with CBP at a U.S port of entry. Consequently, in these cases, one may not require an H-2B visa.
- The employers can request workers from both eligible as well as the non-eligible countries. However, in such a situation, you may file two separate petitions. This assures your request being complied without delays in the further processing of the requests.
How long can the worker stay?
One can only stay for the time period mentioned in the temporary labour certification. However, one can extend their stay on the H2B visa up to three years if the employment requirement permits. If people with H-2B non-immigrant status request for an additional three years of stay, they will have to wait for three months outside the US to get the readmission in the country prior to the approval.
Rules for the family of the H2B workers
The spouse or the kids of the worker under the age of 21 years can seek admission through the H4 non-immigrant category. However, the family members cannot apply for employment during their H4 status in the US.
The USCIS rules on Employment Notification
The Petitioners should notify the USCIS within 48 hours in case the H2B worker fails to report within five days of employment start date. Moreover, in the case the H2B worker himself leaves without notice and does not come to work for five consecutive days without the consent of the employer will lead to abscondment.
If services are fulfilled before the specified time, the employer must file for termination of the H2B visa. In case the termination is on or before 30 days of the petition, then it happens to come under the status of early completion.
The petitioner should make sure to include specific details in the employment notification. Firstly, the concerned person should mention the reason for the notification. These reasons may be the ones mentioned above like a no-show, abscondment, early completion, termination, etc. Further, this reason should prove a good cause. The notification should have the USCIS receipt number. Additionally, the petitioner should mention all the details of the petitioner employer and worker’s personal information. For example, name, address, phone number, employment number, the birthplace of the worker, etc. Every H2B worker holds a visa number and a social security number and these should included in the notification.
The USCIS rules on Fee Notification
The employer or the petitioner cannot collect any placement fee at any time from the H2B visa-holding worker. The petitioners can notify USCIS is they find any prohibited fee payment made to any employer or agent. They should submit this information within 2 working days of the gaining the knowledge.
Furthermore, the entire fee-related information should be present in the notification. This consists of the reason for the notification, USCIS receipt number of the approved H-2B petition, data of the petitioner, employer and worker. This may include necessary details such as name, address, phone number, etc.
How to Apply for H-2B Visa?
The process of applying for an H-2B visa can be complex and may require the assistance of an attorney who is experienced in immigration law. However, in general, the following steps may be involved in the application process:
- Obtain a job offer from a U.S. employer: The individual must first obtain a job offer from a U.S. employer in a non-agricultural job that cannot be filled by a U.S. worker.
- File Labor Certification Application (LCA) with the Department of Labor: The U.S. employer must file a LCA with the Department of Labor and obtain certification before filing a petition with the U.S. Citizenship and Immigration Services (USCIS).
- Gather required documentation: The individual must provide all the required documents such as valid passport, completed and signed form I-129, Petition for Nonimmigrant Worker, a recent photograph, and a certification letter from the U.S. Labor Department.
- File a petition with the U.S. Citizenship and Immigration Services (USCIS): After the LCA is certified, the U.S. employer must file a petition on behalf of the individual with the USCIS.
- Wait for the decision: After the petition is filed, the individual must wait for a decision on their application. The processing time will vary depending on the individual’s circumstances, the specific visa type, and the workload of the USCIS.
- Schedule an interview: If the petition is approved, the individual must schedule an interview at the nearest U.S. consulate or embassy.
- Pay the visa application fee: A non-refundable application fee must be paid at the time of the interview.
- Attend the interview: The individual must attend the scheduled interview at the consulate or embassy, where they will be required to present all required documents and answer any questions related to their application.
What is the H-2B Visa Interview Process?
The interview process for an H-2B visa is similar to the interview process for other nonimmigrant visas. The individual will be required to attend an in-person interview at the nearest U.S. consulate or embassy. During the interview, the individual will be required to present all required documents and answer any questions related to their application.
- The consular officer will check the individual’s passport, visa application form, and other required documents to ensure that they are complete and accurate.
- The consular officer will ask the individual questions about their background, job offer, qualifications, and the specialty occupation they are seeking to work in.
- The consular officer will verify the individual’s ties to their home country, and will assess whether the individual has a credible plan to return home at the end of their trip.
- The consular officer will also verify the validity of the job offer, including the U.S. employer’s ability to pay the offered wage, and whether the Labor Condition Application (LCA) was certified.
- The consular officer may also conduct additional security checks if necessary.
What are the Required Documents for H-2B Visa?
The required documents for an H-2B visa will vary depending on the individual’s circumstances. However, in general, the following documents may be required as part of the application:
- A valid passport
- A completed and signed Form I-129, Petition for Nonimmigrant Worker
- A recent photograph of the applicant
- A Labor Condition Application (LCA) certification from the U.S. Department of Labor
- A job offer letter from the U.S. employer, including the job title, duties, and salary
- Educational and professional qualifications, such as diplomas, degrees, and transcripts
- A resume or curriculum vitae
- A letter from the U.S. employer explaining why the job cannot be filled by a U.S. worker
- Any additional documentation that the consular officer may require
What is the H-2B Visa Fee?
The fee is currently $460 and is used to cover the cost of processing the visa application.
What is the H-2B Visa Processing Time?
The processing time for an H-2B visa will vary depending on the individual’s circumstances, the specific visa type, and the workload of the U.S. Citizenship and Immigration Services (USCIS).
Normally, the processing time for H-2B visa can take several months, however, it can be affected by factors such as the number of applications received, the completeness of the application, and the workload of the USCIS.
Also, it’s important to note that the H-2B visa program is subject to an annual numerical cap set by the government, and the cap can be reached early in the fiscal year, which may lead to longer processing time.
H-2B Visa Frequently Asked Questions
- What is the H-2B Visa?
A: The H-2B visa is a non-immigrant visa that allows employers to hire foreign workers on a temporary basis for non-agricultural jobs.
- Who is eligible for an H-2B visa?
A: To be eligible for an H-2B visa, the foreign worker must have a job offer from a U.S. employer and must possess the necessary qualifications and skills for the job. The employer must also demonstrate that there are not enough U.S. workers who are able, willing, and qualified to do the work.
- How long does an H-2B visa last?
A: An H-2B visa is typically valid for the duration of the job, up to a maximum of three years.
- How many H-2B visas are available each year?
A: The number of H-2B visas available each year is capped at 66,000, with half of the visas being made available for workers starting employment in the first half of the fiscal year and the other half being made available for workers starting employment in the second half of the fiscal year.
- Can H-2B visa holders bring their families with them?
A: Dependents (spouses and unmarried children under 21) of H-2B visa holders can apply for H-4 visas to accompany or join them in the U.S. However, H-4 visa holders are not authorized to work in the U.S.
- Can H-2B visa holders change jobs while in the U.S.?
A: H-2B visa holders are not allowed to change jobs while in the U.S. without first obtaining permission from U.S. Citizenship and Immigration Services (USCIS).
- Can H-2B visa holders apply for a green card?
A: H-2B visa holders are not eligible to apply for a green card while in the U.S. The employer should apply for the permanent residency for the employee if the employer wants the employee to stay permanently.