H-2B Visa
H-2B Visa
- Definition
- Criteria for H-2B
- H-2B Application Process
- Required documentation
- Labor Certification
- H-2B Cap on Visas
- H-2B Eligible Countries List
- Duration of Stay
- Family Members of H-2B
1. Definition
The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.
2. Criteria for H-2B
To qualify for H-2B nonimmigrant classification:
- The employer must establish that its need for the prospective worker’s services or labor is temporary. Temporary is defined as: a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
- The employer must demonstrate in sufficient U.S. workers are able, willing, qualified, and available to do the temporary work
- The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
- Generally, 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 Governor of Guam, must be submitted with the H-2B petition.
Note: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)
3. H-2B Application Process
Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor (“DOL”). Prior to 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 Department of Labor if the employment will be in Guam).
Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129.
Step 3: Prospective Workers outside the United States apply for Visa and/or Admission. After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.
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.
4. Required documentation
- Each applicant for a visitor visa must submit these forms and documentation as explained below:
- Online Non-immigrant Visa Electronic Application, Form DS-160.
- A passport valid for travel to the U.S. with a validity date of at least six months beyond the applicant’s intended period of stay in the U.S. (unless country-specific agreements provide exemptions).
- One (1) 2×2 photograph.
5. Labor Certification
In order to be considered for a nonimmigrant visa to be issued the applicant’s prospective employer to obtain a labor certification or other approval from the Department of Labor for the prospective employee (visa applicant). Once that is received, if required, the prospective employer or agent can file the Form I-129, Petition for Nonimmigrant Worker with USCIS.
6. H-2B Cap on Visas
There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided 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.
7. H-2B Eligible Countries List
The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.
Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:
• Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
Note: 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 that alien to be the beneficiary of such a petition
8. Duration of Stay
Generally, USCIS will grant H-2B visas for the period of time no longer than one (1) year. H-2B classification, however, may be extended in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.
An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant.
9. Family Members of H-2B
The spouse and unmarried, minor children of an applicant under for any of the above types of visas may also apply for the same type of visa in order to accompany or join the principal applicant. The principal applicant must be able to show that he or she will be able to support his or her family in the U.S. A person who has received a visa as the spouse or child of a temporary worker may not accept employment in the U.S.
10. For More Information on H-2B Visas
