Last Updated on May 29, 2023 by Anda Malescu
The article discusses can H-2B visa be extended? The answer is yes, H-2B visa can be extended with the same or a different employer. Before discussing how to extend the H-2B visa, it is important to understand the H-2B visa.
H2B visa allows US companies to bring employees from abroad to fill temporary positions in the United States based on a seasonal, peakload, intermittent or one-time occurrence need. The most frequently filled positions via the H2B visa program are that of a landscaper, laborer, cook, and hotel housekeeper.
To secure H-2B visas a US employer must:
- Obtain a Temporary Labor Certification the US Department of Labor (DOL) which includes the following steps:
- Obtain a Prevailing Wage Determination from DOL which sets the minimum wage for the positionAdvertise for the H-2B position under DOL guidance
- Submit an application with DOL describing the services to be performed, wages offered, showing that the position is temporary in nature and fits within one of DOL’s defined temporary needs – seasonal, peakload, intermittent or one-time occurrence.
- Submit a petition with US Citizenship & Immigration Services (USCIS) on form I-129 to request H2B workers to be admitted to the US. The H-2B worker does not have to be named and one petition can be filed to request multiple workers.
- Workers must apply with US consulate abroad to get H-2B visa if I-129 is approved by USCIS
There is a numerical limit of 66,000 foreign workers that can come to the U.S. each year on an H2B visa. From time to time, the US government allows for additional H-2Bs for returning workers, those who held H-2B in the past 3-years, and for citizens of Haiti, Honduras, Guatemala and El Salvador.
The length for which an H-2B visa is approved depends on the temporary need used to justify the need for workers. For example, seasonal and peakload needs typically last from 3 to 10 months when temporary workers are needed to work during an active tourist season. On the other hand, a one-time occurrence need can last up to 3-years per DOL but USCIS will approve petitions for up to 1-year.
That leaves us with the question, can an H-2B visa be extended and how?
What is H-2B extension?
H-2B visa is given to workers for the time authorized on the temporary labor certification. However, USCIS states that H-2B status can be extended for qualifying employment in increments of up to 1 year each. A new temporary labor certification covering the requested time must be obtained from DOL for each extension request. The maximum period of stay in H-2B status is 3 years.
From the employer’s perspective, an H-2B extension means extending the temporary need for up to 1-year. The employer will have to show how the temporary need justifies such an extension. In that case the employer can continue to employ their current H-2B workforce and will not be subject to the numerical limit of 66,000 visas per fiscal year.
From the employee’s perspective, he or she can extend H-2B status not only in cases where the employer has obtained an extension to their temporary need but also by taking a job for a new employer who is also permitted to hire H-2B employees.
In cases where the H-2B visa is extended by changing employers, the new employer has to file a temporary worker petition I-129 with USCIS requesting that the employee’s H-2B status be extended for the duration of the new temporary job. For example, an H-2B visa employee can work as ski instructor for the winter season in Colorado and then change employers and extend the H-2B visa status to work as bar tender in Massachusetts for the summer season.
Steps to extend H-2B visa
- Obtain new Temporary Labor Certification. The employer has to repeat the same steps as the ones for obtaining the initial labor certification. The employer has to show that the temporary need will persist during the requested period of employment and be ready to provide evidence, if required.
- Submit a new temporary worker I-129 petition USCIS. Unlike the initial petition, this time the employer will have to request an extension of stay. Since the H-2B worker is in the United States and the employer is requesting an extension of stay, the name of the H-2B worker must be stated in Form I-129. Form I-129 can be submitted with premium processing, meaning that for an additional fee of $1,500 USCIS processes the application in 15 days.
After submitting the petition with USCIS, If the application is approved, the USCIS will send an approval notice in Form I-797; if the application is denied, the USCIS will send a denial notice. In some cases, the USCIS may request evidence. The worker must retain the approval notice Form I-797 as evidence of his or her new H-2B status.
If you wish to extend the validity of H-2B visa for your current or future employees, contact us or schedule an appointment with our experienced H2B Visa lawyer in Miami, Florida USA to assist you with the H-2B visa extension process.
Malescu Law P.A. – Business & Immigration Lawyers
