Last Updated on March 24, 2023 by Anda Malescu
The article provides a comprehensive discussion on what are the H-2B visa requirements? The H-2B visa requirements are split in two categories:
- H-2B visa requirements for employers; and
- H-2B visa requirements for employees
The burden is typically on the US employers to meet the H-2B requirements while employees only need to meet very few requirements for the H-2B visa.
The most important H-2B requirement for a worker is that he or she needs to have a passport from one of the countries participating in the H-2B visa program and have the level of experience, training or education required for the job. Regarding the latter, for example, if the H-2B job requires 6 months of experience as a retail store manager, then you must be able to prove that you have the required experience for the job.
However, before discussing what are the H-2B visa requirements in detail, it is important to understand the H-2B visa program.
The H-2B visa allows US companies who meet the H-2B visa requirements to bring employees from abroad to fill temporary positions for non-agricultural labor in the United States.
The period of authorized stay in the US for the foreign workers varies based on the temporary need of individual employers, but in most cases the workers are authorized to stay in the U.S. between 6 to 10 months.
The visa is suitable for workers in the construction, hospitality, retail, warehousing, fish processing, landscaping and other industries that experience temporary surges in demand or seasonality.
There are 66,000 H-2B visas available for each fiscal year which is from October to September of the following year. Further, the fiscal year is divided in two halves, with the first one starting on October 1st and the second half starting on April 1st. 33,000 H-2B visas are available for each half.
In recent years, the US government has allocated additional H-2B visas for returning H-2B workers for the second half of the fiscal year (April to October), which encompasses the summer months when most of the demand for temporary labor is.
Some of those additional H-2B visas were reserved for citizens of Haiti, Honduras, El Salvador and Guatemala in order to help alleviate poverty and reduce illegal immigration to the US.
In order to qualify for H-2B visas, both employers who wish to sponsor and employees who wish to work in the US have to meet a number of H-2B visa requirements laid out by the agencies involved with administering the program. Those agencies are the US Department of Labor, US Citizenship and Immigration Services and the US consulates abroad which issue the visas.
What are the H-2B Visa Requirements?
The H-2B visa requirements for US employers are numerous and stringent, as the employer has the burden to prove that they have a temporary, not permanent, need for labor and that they were not able to find US workers willing and able to fill the need. The H-2B visa requirements for employees are far less stringent.
What are the H-2B visa requirements for employers?
The H-2B visa requirements for employers are:
- Recruitment. Employers must prove that there are not enough US workers who are able, willing, qualified, and available to do the temporary work in question. An employer is required to conduct recruitment as directed by the Department of Labor, including posting the job on national and state government career websites and submitting a detailed recruitment report after a specified period.
- Obtain Prevailing Wage Determination from DOL. US employers who want to sponsor foreign H-2B workers have to prove that employing foreign will not adversely affect the wages and working conditions of similarly employed US workers. Employers need to obtain a Prevailing Wage Determination from the Department of Labor which specifies the minimum wage an H-2B employer has to offer to the worker.
- Temporary need. Another H-2B visa requirement is that the employer has to prove that the need for the foreign worker’s services is temporary, regardless of whether the underlying job can be described as temporary. Employer’s need can be considered temporary only if it falls under one of the following needs for labor as defined by the US government.
- One-time occurrence – An employer can claim one-time occurrence if it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker or if the employer 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
- Seasonal need – An employer can claim a seasonal need if the service or labor for which it seeks workers is traditionally tied to a season of the year by an event or pattern, that is of a recurring nature. For example, summer tourist season on the Jersey shore or crab season in Alaska. It is important to note that an employer cannot claim seasonal need if the reason is that its permanent employees are on vacation.
- Peak load need – An employer who claims a peak load need must show that it (1) regularly employs permanent workers to perform the services or labor at the place of employment, (2) the need is to temporarily supplement permanent staff due to an increased seasonal or short-term demand, and (3) the temporary H-2B visa workers will not become part of the employer’s regular operation.
- Intermittent need – to show intermittent need an employer must prove that it (1) has not employed permanent workers to perform the services or labor in question, and that (2) occasionally or intermittently needs temporary workers to perform services or labor for short periods.
In practice, employers must satisfy the following H-2B visa requirements:
- The employer’s need for workers must be one-time, seasonal, peakload or intermittent
- The job must be for less 12 months, unless it is based on a one-time occurrence in which case it can be up to 3 years
- There are no qualified and willing US workers available for the job
- The employer must have the ability to pay the minimum wage for the job
What are the H-2B visa requirements for employees?
Workers who wish to take on a temporary job in the United States need to meet the following H-2B visa requirements:
- The employee must be a citizen of a country that is eligible for the H-2B visa program. The latest list of H-2B visa eligible countries can be found here.
- The employee has a valid job offer from a US employer to perform temporary or seasonal non-agricultural work.
- The employee has to actually meet the requirements for H-2B visa job as described on the approved petition. The US consulate where the visa is being issued might seek to validate past work experience and/or licenses.
- The worker intends to return to their home country once their H-2B visa expires. This is a standard requirement for most nonimmigrant visas for the US.
Our immigration lawyers can assist
The H-2B visa requirements for employers can be complex and difficult to fulfill, and often require the employer to submit company data such as payroll reports, historical sales and future projections and/or production numbers. Having a competent and experienced H-2B visa attorney can help you navigate the process and achieve the desired outcome.
If you are a US employer who is considering using the H-2B visa to bring foreign workers, contact us or schedule a consultation with our immigration lawyers in Miami, Florida USA to find out if your company is able to meet all H-2B visa requirements.
Malescu Law P.A. – Business & Immigration Lawyers
