About 66,000 temporary workers are allowed to come to the United States every year on H-2B visas. The H-2B visa enables American employers to employ nonimmigrant workers to fill temporary non-agricultural roles. These workers can be at any skill level.
With the many specific steps supposed to fulfill a successful H-2B visa application, there are often several challenges and missed details that can lead to a failed attempt. However, with the help of an experienced immigration lawyer, each step of the process will get the proper attention it requires and increases successful application chances. Contact us at California Immigration Attorney and let us help you through your H-2B Visa application process.
What You Need to Know About H-2B Visas
The United States has maintained a history of importing nonimmigrant workers who are sometimes referred to as temporary workers. In the past, guest workers were used to addressing U.S workers' shortage during times of war. Notably, the Bracero program, which lasted from 4th August 1943 until 1964, brought a lot of Mexican workers into the U.S as farm laborers.
Nowadays, the Immigration and Nationality Act (INA) provides temporary admission of agricultural and non-agricultural workers in the U.S through the H-2A and H-2B visa programs. Workers in these programs do not require formal education to be eligible for their respective positions. H-2B workers perform in temporary jobs in a variety of fields such as:
- Landscapers or groundskeepers
- Forestry workers
- Construction laborers
- Meat and fish processors
- Restaurant workers
Please note, H-2B visa holders are different from "green card" holders who are on an immigrant Visa that grants permanent residency (and eventually citizenship, if they complete specific steps). With this Visa, employers own and control the nonimmigrant visa. This means that once H-2B workers are fired, they should be instantly deported.
Qualification for H-2B Visa Program as a U.S Employer
The qualification eligibility for an H-2B Visa program applies to both the employer and employee intending to use it. Employers must establish the following to be eligible for the H-2B immigration classification:
- That there are no enough U.S worker available and willing to handle temporary work
- Employing H-2B workers would not significantly affect the working conditions and wages of other employed American workers
- The employer needs for prospective workers' services are temporary despite whether the job is temporary
Based on the last requirement described above, a temporary job includes a job that occurs once a year and is specific to a particular season. One-time need means that the employment situation is a short duration event that has created a temporary worker's demand. It also means that there are no current or there have never been any permanent employees perform the labor or service in the future.
Seasonal needs involve a situation where the employers claiming this need prove that the labor or service they are seeking workers is tied to a particular season or an event with a particular pattern and is recurring in nature.
Please note that employers cannot claim that a seasonal need if they need the labor or service is subject to change, unpredictable, or is a vacation period for their permanent employees.
Employers can also consider hiring nonimmigrant employees through H-2B visas based on a peak season’s needs. Peak load needs are based on employers' ability to regularly employ permanent employees to carry out labor or services at their workplace. Employers must also show that their need to temporarily supplement their staff at their workplace due to a short-term or seasonal demand and temporary addition to the team will not be part of their regular operation.
Finally, employers can seek H-2B visa applicants through intermittent needs if they prove that they have not employed full-time or permanent employees to perform labor or services. They can also seek an H-2B visa application if there is an occasional or intermittent need for temporary employees to perform services or work for a short period.
Recruiting Requirements for Employers Participating in H-2B Program
For employers required to employ H-2B employees, they must meet specific criteria to be eligible for their advertising and employment. These terms and conditions of work should not be less favorable than those offered or supposed to be provided to U.S workers and usually apply in different areas related to H-2B employment. For instance, the kind of requirement needed for prospective H-2B employers to advertise for job opportunity are as follows:
- The employers' name and contact information
- A clear description of the job opportunity with sufficient information that would help prospective workers, especially details about the job to be performed, duties, minimum education needed, experience requirement, work hours and days, and the anticipated start and end dates
- A statement showing that the position is temporary and full-time, and the number of job openings that the employer wants to fill
- A statement of potential overtime available for the worker and the wage offers that come with working throughout the overtime hours
- The geographical area of the intended employment with clear information that would help potential applicants to complete their travel requirement and know where they would likely reside
- A statement of on-the-job training that will be provided to the worker, if applicable
- Wages that the employer will be offering, including any intent to provide multiple wage offers
- If applicable, provide a statement of any lodging, board, or other facilities that the employer will offer to prospective workers or would assist the workers in securing
- A statement showing how the employer will offer transportation from the place where the prospective worker will be residing and the location of employment
- A statement showing all deduction that the employer will make from the employer's paycheck, including a reasonable deduction for lodging, board, and other facilitation offered to the worker
- If applicable, a list of all work tools, equipment, and supplies that will be provided to the employer without charges
Employment-Related Notices to the United States Citizenship and Immigration Services (USCIS)
Prospective employers or petitioners should notify the USCIS within two workdays in case of the following:
- If the H-2B employee does not report to his or her job within five working days of the employment date or the job start date that the employer established
- If the nonimmigrant worker leaves without any notice or does not report to work within five consecutive workdays and does not have the employer's consent
- If the H-2B workers are terminated before completing their services or labor
- If the H-2B workers complete their services or labor within thirty days before the specific date indicated in the H-2B visa petition
While the petitioners are issuing the employment-related notification, they must consider the following:
- Reasons for the notice including whether they failed to show, made an early completion, terminated or absconded participation in the program
- USCIS receipt number of a certified petition
- The petition information, including name, phone number, and address
- The H-2B worker's information such as full name, date, and place of Birth, and Last known phone number and physical address
The petitioner should also submit the H-2B worker's Visa number and Social security number to help in USCIS identification.
Prospective Employees Qualification for H-2B Visa Program
Before nonimmigrants apply for an H-2B visa program, they must prove that they already have a job offer and have the correct background for the job intending to do. They should also have valid proof that they have the intention to return to their home before their Visa expiration date.
As stated earlier, the job category that the applicant is considering must be 'temporary,' meaning that it must run for a year or less. The H-2B status lasts for a maximum of three years, meaning that foreign workers cannot seek an extension of their position or be readmitted to the U.S. However, suppose the respective people have resided or have been physically present outside the United States for the immediate six months before the maximum time limit. In that case, they can seek an extension beyond the three-year limit. This means that the H-2B has discretion for a one-year extension that will stay permissible until the full three years has been reached.
H-2B Visa Application Process
The H-2B application process is broken down into three main categories. These categories include applying for labor certification, filing a Visa petition with the United States Citizenship and Immigration Services. Let us look at these steps in detail.
Applying for Temporary Labor Certification
Before employers start the recruitment process, they must submit Form ETA -9141 to obtain a prevailing wage for use during the short-term labor certification application. Once they have completed thy will start the recruitment process, which entails the following:
- Place a 10-day job order with the State Workforce Agency (SWA) in the target employment area. The job order should not start more than 120 days before the need. The employer should also notify SWA that the job order is done together with an H-2B filing
- Place an advertisement in a newspaper to circulate it in the target area of employment. The ad should run for a minimum of two days, of which one should be a Sunday. The ad must run during the period of the job order
- Reach out to all applicants
- Prepare a recruitment report which cannot be completed before two days after the end of the job order or five days after the last newspaper advertisement
- Prepare ETA-9142
- Submitting ETA-9142 and a Recruitment report to the Department of Labor National Processing Center located in Chicago
- Prepare the Audit File and retaining all documents that support the ETA-9142
Please note, H2B certification lasts for a maximum of a year, proves that it is temporary or seasonal non-agricultural employment, and is performed for a particular time of the year or limited for a period less than a year.
Filing the H-2B Petition
An H-2B temporary worker visa petition is filed on Form 1-129 of the United States Citizenship and Immigration Services (USCIS) along with the Form 1-129H supplement and the approved Labor Certification from the Department of Labor. The H-2B temporary workers visa petition should include the following:
- A valid non-agricultural labor certification
- Copies of proof that every nonimmigrant worker named in the petition has met the minimum job requirement stated in the Labor Certification
Applying for H-2B Visa at a United States Consulate
Nonimmigrant workers must furnish the original or copies of the Notice of Action, Form 1-797A, or B. this s the approval notice forwarded to your employer once the petition has been approved. The following must be included in your H-2B visa application:
- DOS Form DS – 160 for non-immigrant Visa Application
- A copy of your passport, which should be valid for at least six months beyond the period of stay in the United States and with at least one blank page
- A colored photograph that is showing your full face without covering your head against a light background. You can wear a headdress if required by a religious order which you are a member
- Evidence that you will meet your minimum job requirement as stated in the labor certification application
You should apply for the H-2B Visa with the United States Consulate in your country and then seek entry to the U.S with the United States Customs and Border Protection (CBP) at a United States port of entry. You can also seek direct entrance with CBP at a United States port of entry.
Please note, if employers intend to petition for an H-2B Visa for one or several Canadians planning to be employed within a fifty miles' radius from the United States - Canadian border for thirty days or less, they should skip the first step of the application process.
Documents Needed for H-2B Visa Appointment
To start with, nonimmigrant workers must apply for Visas from a U.S consulate or embassy in their countries. The full H-2B visa includes the following documents:
- An application for a nonimmigrant Visa
- Submission of DS – 157 for males aged between 16 to 45 years
- A passport with the requirements described above
- A valid copy of the Notice of Approval for the H-2B Petition
- Proof of ties to the county of residence including business, property, or family
- Filing fees
Foreigners who are already working in the United States should apply for Visas. However, if they leave and decide to re-enter later, they might need to apply for visas.
Please note, acquiring a Visa does not confer or guarantee an automatic entry into the United States. Visa holders can still be denied access to the country by an immigration officer. Apart from that, once a foreign worker has been granted entry into the United States, the immigration officer will determine how long they will remain in the United States.
H-2B Processing Time
Employers should allow sufficient time for the proper processing of their employment petition. They can fill for a maximum of six months before starting their employment, but not less than forty-five days before the actual work start date. Employers can also petition for several workers by filing a blanket petition covering several employees.
Congress usually sets up an H-2B cap per fiscal year on the total number of aliens that can be accepted into the United States. Currently, Congress has set up an H-2B Visa limit for 66,000 workers. This means that 33,000 workers should be employed in the first half of the year, which begins from 1st October and ends on 31st March. The second half of the fiscal year usually starts on 1st April and ends on 30th September.
Any unused number can be used in the second half of the year. However, any unused number of one fiscal year does not carry over to the next. Besides that, you should note that once the H-2B cap has been reached, USCIS cannot accept any petition for H-2B workers except those exempted from the H-2B cap.
The congressional appropriation riders, commonly referred to as workers exemption, increased the number of H-2B applicants in 2016. Under this exception, anyone who was previously employed under this program in the past three years would return in 2016 without being included against the 66,000 annual caps.
The exception can create a massive increase in the number of H-2B workers in the U.S, meaning that the number would go as much as quadrupling.
H-2B Eligible Countries List
Not all foreigners are eligible for H-2B petitions. American employers can only approve H-2B applicants of countries designated by the secretary of Homeland Security. The Department of Homeland Security usually publishes this list of eligible countries in the Federal Register notice. The designation of eligible countries typically lasts for one year from the date of publication.
Some of the notable countries eligible for this program's participation effective 19th January 2020 include Canada, Argentina, Brazil, Belgium, Germany, France, United Kingdom, Japan, Israel, Madagascar, South Africa, The Netherlands, and Singapore.
A citizen from a country that is not listed may only benefit from an H-2B petition once the Secretary of Homeland Security determines if it is in the United States’ interest for the citizens to benefit from the benefits.
The secretary of homeland Security can also consider a non-listed country once they receive a recommendation from the Department Of State or through a written proposal from an unlisted foreign government. They may also consider a non-listed country if the employer intends to hire citizens from these countries or another interested party involved.
The secretary of Homeland Security usually designate countries while considering the following accounting factors:
- How the country cooperates in issuing travel documents to its citizens, residents, and its subject nationals
- How many final and unfinished orders of the citizens, subjects, and residents of the target country
- How many orders of removal issued and executed against the country's nationals, residents, subjects, and citizens
If you are a foreigner and would like your country to be added as an Eligible Country, you should send a written proposal to the Department of State at your country's U.S consulate or embassy. You can also send a request to the DHS's Office of policy. DHS may consider adding your country to the list anytime only if the Secretary of Homeland Security decides that your country is eligible.
Please note, if you are requesting H-2B workers from an eligible and non-eligible nation, it is necessary to file two different petitions. This decision might quicken your H-2B Visa processing time.
Bringing Family Members as an H-2B Worker
H-2B workers' spouses or unmarried children below 21 years are issued with H-4 visas. They can remain in the United States as long as the H-2B visa holder resides in the United States. However, they are not permitted to work in the United States.
Challenges of H-2B Visa Application
In most surveys conducted on the H-2B program, the most recurring complaint includes the program's cost, time, paperwork, and its unpredictable nature.
The filing fee for Form 1-129 stands at $460, posing another challenge for this program. However, experts advise payment for a premium processing fee that guarantees 15-day processing to the application. However, if the deadline is not met, USCIS usually refunds the price and continues providing accelerated processing to the case. The premium process amounts to around $1,440, and applicants should file in addition to the base filing fee.
Another cost to consider is hiring a firm that would help you through the process. However, hiring a law firm to help you out in the application process is reasonable since it enables you to complete the application process in time and ensure that you do it correctly.
Find an Los Angeles Immigration Attorney Near Me
At the California Immigration Attorney, we know that coming to the United States as an H-2B worker or other visa programs can be stressful. Several details need to be considered to ensure that you safely and comfortably settle in a new country. That's why we recommend our legal immigration services so that we can handle the nitty-gritty legal process and make it easy for you. For more information, call us at 424-789-8809 and let us help you through your H-2B application process.