Last Updated on November 29, 2022 by Anda Malescu
This article discusses how do you get an H2B employee to perform services or labor if you are a US company. A US company or agent can bring H2B employees to the United States on a temporary basis in order to work in unskilled, skilled or professional positions that are non-agricultural.
One important aspect is that the employer can bring many H2B employees on a single filing for the same position and dates of employment.
Moreover, bringing H2B employees to the US can be competitive and requires forward planning because there is a 33,000 cap for the first half of fiscal year (October 1 to March 31) and 33,000 for the second half of fiscal year (April 1 to September 30). However, oftentimes the U.S. government increases the cap by adding additional visas for H2B employees during a fiscal year.
The H2B employees can only work non-agricultural jobs and must be citizens of one of the countries participating in the H2B Program as determined by the Secretary of Homeland Security.
If the H2B employee is not a national of one of the countries included in the H2B program, then the company can seek a determination from the Secretary of Homeland Security that it is in the interest of the United States for the H2B employee to be the beneficiary of the H2B petition.
The U.S. Citizenship and Immigration Services may approve H2B petitions for nationals of countries not on the list on a case-by-case basis. To learn more about the H2B visa program, you can read our designated article on What is the H2B Visa Program for USA?
It is important to keep in mind that the H2B employee can only work non-agricultural jobs and if your company has a need for workers in agricultural positions, then you can consider sponsoring an H2A employee. However, if you are a US employer with a need to hire H2B employees for your company, here is how to get an H2B employee:
- Check the countries participating in the H2B program. You can only fill positions with H2B employees who are citizens of countries participating in the H2B program or otherwise you will need to meet additional criteria to obtain a determination from the Secretary of Homeland Security that sponsoring the H2B employee is in the interest of the United States. There are currently about 80 countries participating in the H2B but check the latest list here because oftentimes countries are added or taken off the list. For example, Belize or Haiti used to participate in the H2B program but were excluded from the program in 2018. In practical terms, you should get H2B employees who are citizens of countries eligible to participate in the H2B program.
- Use foreign recruiters or recruit H2B employees on your own. You can use U.S. and foreign recruiters to assist with recruiting H2B employees for jobs in your company, but you can also find H2B workers on your own including through word of mouth. Each fiscal year the U.S. Department of Labor (DOL) publishes a list of foreign recruiters that U.S. companies have used in the past to recruit H2B employees, but the DOL does not endorse any of the foreign agents or recruiters on the list. The list is for information purposes only and is used to assist the DOL with enforcing recruitment violations. To consult the Foreign Labor Recruiter List, you can access the official website here. While the published foreign recruiter list can be a great start in your company’s H2B recruitment efforts, you can also use any other U.S. or foreign companies to assist you to recruit H2B employees for open positions and you can also search for H2B workers on your own.
- Submit Request for Prevailing Wage Determination with DOL. After you have located a U.S. or foreign recruiter to assist you with finding H2B employees or you have found H2B employees on your own, then you can submit a Request for Prevailing Wage Determination (Form ETA-9141) with the DOL for the position for which you seek H2B employees in the area of employment. Obtaining a prevailing wage from the DOL for the prospective occupation is required in order to comply with the requirement that hiring foreign H2B workers will not adversely affect the wages and working conditions of U.S. workers comparably employed. As a US employer, you will need to pay the H2B employee at least the prevailing wage rate determined by the DOL throughout his or her employment. Generally, it can take approximately 1 month to obtain a prevailing wage determination but waiting times may vary.
- Submit Application for Temporary Employment Certification and Job Order. Next, you must submit the Application for Temporary Employment Certification (Form ETA-9142B) with the DOL and the Job Order with the State Workforce Agency 90 to 75 days prior to the date the H2B employee starts his or her job. As part of the submission, the employer must state the nature of temporary need for the H2B employees – one-time occurrence, seasonal, peak load or intermittent – and the total number of H2B employees it needs. There are no restrictions on the number of H2B employees a company can request, but the DOL can limit the number of employees during the certification process and issue a partial certification. Keep in mind that generally you must receive the prevailing wage determination from the DOL before being able to submit these documents and the timeframe in which you can file these documents is strict. However, in emergency situations you may be able to submit these documents before you have received the prevailing wage determination. If you are an employer who is petitioning for one or more musicians from Canada that will be employed within a 50 mile radius from the U.S.-Canada border for 30 days or less, then you do not need to apply for Temporary Employment Certification or submit a Job Order.
- Submit Petition for H2B Nonimmigrant Worker with USCIS. If the DOL approves the Temporary Employment Certification (also known as the temporary labor certification) for H2B employees, then you must file the Petition for H2B Nonimmigrant Worker (Form I-129) with USCIS. On the H2B Petition, you can list the total number of H2B employees that were approved by the DOL on the Temporary Employment Certification, but the total number of workers requested at USCIS should not exceed the number of H2B workers certified by the DOL.
- H2B employees outside of the United States must apply for a visa and/or admission. If the USCIS approves the H2B Petition, then the prospective H2B employees who are outside of the United States must visit a U.S. consulate abroad to obtain a visa and then travel to the U.S. In the case of H2B employees from Canada where a visa is not required, the employees can seek admission directly with the U.S. Customs and Border Protection (CBP) at a U.S. port of entry.
How can Malescu Law assist?
How do you get an H2B employee? Our experienced immigration lawyers in Miami, Florida USA can assist you with getting and H2B employee, guide you throughout the H2B process as well as the prepare documents and applications for the H2B program. Further, you can contact us for assistance with the H2B recruiters and list. Contact us or book an appointment.
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