The article provides a discussion of all H-2B visa requirements. The H-2B visa program 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 that is between 6 to 10 months. The visa is suitable for workers in the construction, hospitality, retail, warehousing, fish processing, landscaping and others that experience temporary surges in demand or seasonality, among others.
There are 66,000 H-2B visas per year available for each fiscal year which is from October to September. 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, with 33,000 H-2B visas 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 Honduras, El Salvador and Guatemala in order to help alleviate poverty and reduce illegal immigration to the US.
In order to qualify for the sought-after H-2B visas, both employers who wish to sponsor and employees who wish to work in the US have to match a set 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.
H-2B Visa Requirements
The H-2B visa requirements for US employers are more numerous and stringent, as the employer has the burden to prove that they have only a temporary, not permanent, need for labor and that they were not able to find US workers wiling and able to fill the need.
The H-2B visa requirements for US employers are as follows:
- 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.
- 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. US employers will have to obtain a Prevailing Wage Determination from the Department of Labor which would specify the minimum wage an H-2B employer has to offer.
- Another H-2B visa requirement is that the employer has to prove that then need for the prospective worker’s services or labor 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.
For non-US employees who wish to take on a temporary job in the United States there are the following H-2B visa requirements:
- The prospective 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 prospective employee has to have a valid job offer from a US employer that has an approved petition by the USCIS to perform temporary or seasonal non-agricultural work.
- The prospective employee has to actually meet the requirements of the 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 has to show intend to return to their home country on expiration of their H-2B visa. This is a standard requirement for most nonimmigrant visas for the US.
How can our immigration lawyers assist?
The H-2B visa requirements for US 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 for US employers can help 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