Last Updated on April 9, 2023 by Anda Malescu
The H-2B visa is for US employers that encounter difficulties hiring due to shortages of US workers that are willing and able to work. The H2B visa is available only to nonagricultural workers.
Our H-2B visa lawyers assist employers with H-2B visa program for the USA.
Overview:
- What is H2B Visa?
- H2B Visa Benefits
- H2B Visa Requirements
- Temporary Need for H2B Visa
- Who is eligible for H2B Visa?
- H2B Visa Countries
- How to apply for H2B Visa?
- How to get an H2B Visa?
- How does the H2B Visa work?
- How long does the H2B visa process take?
- What is the H2B Visa Processing Time?
- How long can I stay in the US on H2B Visa?
- How long does an H2B Visa last?
- How long is H2B Visa valid?
- How long does it take to get an H2B visa?
- H2B Visa Lottery
- How much does H2B Visa Cost?
- Conclusion
1. What is H2B Visa?
The H-2B visa program allows US employers to hire foreign workers to perform temporary nonagricultural work.
Through the H2B visa program US companies can fill positions by hiring employees from abroad on a seasonal, peakload, intermittent or one-time occurrence temporary basis. The H-2B visa program is typically used by labor-intensive industries such as
- hospitality,
- construction,
- retail,
- warehousing and
- others
The most frequently filled positions via the H2B visa program are that of a landscaper, laborer, cook, hotel housekeeper and construction worker.
The program also establishes certain recruitment and employment standards to protect US workers. That includes requirements to advertise for the H-2B position under U.S. Department of Labor (DOL) guidance before the position can become available to foreign workers.
Employers cannot use the H2B visa program to cut costs by hiring foreign or low-price workers but instead employers can use it to address temporary or seasonal labor shortages. Employers who would otherwise have to discontinue services due to lack of US workers can use the H2B visas to hire workers from other countries and continue to operate.
2. H2B Visa Benefits
The H2B Visa Benefits are:
- You can work in the U.S. temporary
- You can bring your dependent spouse and children to the U.S.
- You can travel outside the U.S.
- You can change jobs or transfer to a new employer if you have a new job offer and a new petition approved on your behalf
3. H2B Visa Requirements
H2B Visa Employer Requirements
To qualify for H2B visa the employer must meet the H2B visa requirements:
- Employer is an LLC, corporation, partnership or sole proprietorship
- Employer has a place of business in the US
- Employer’s need for the job must be temporary. Temporary means for less than 1 year or for a specific one-time need of up to 3 years. Temporary need can be seasonal, peakload, intermittent or one-time occurrence.
- Job offered is full time
- Wage offered is equal or higher than the prevailing wage
- US employer must obtain temporary labor certification from DOL
- An authorized agent can submit the temporary labor certification on behalf of the US employer
- In limited circumstances, recruiters can file jointly with employers
- Employer has an approved petition from USCIS
Employee Requirements for H2B Visa
As an H2B worker you must meet the following H2B Visa requirements to qualify:
- You are a citizen of a country that participates in the H-2B visa program. You can find the H2B Visa Countries below or on the government website.
- You have a valid job offer from a US employer
- You have the experience, education or licenses required for the job
- You intend to return to your home country upon expiration of the H2B visa
4. Temporary Need for H2B Visa
The H-2B visa is for foreign workers coming to the United States temporarily to engage in nonagricultural services or labor that is based on the US employer’s seasonal, intermittent, peak load, or one-time need.
Only certain position can be filled by H-2B workers. In most cases it is inappropriate to temporarily fill permanent positions, such as university chairs, professors, or lecturers, with H-2B workers. However, the H-2B job opportunity may be professional, skilled, or unskilled.
Similarly, H-2B visa is unavailable for foreign nationals employed on board cruises to nowhere, to conduct gambling in waters outside U.S. and foreign territory.
The positions have to be temporary in nature and the company’s need for H-2B workers must fall under one of the temporary needs:
- One-time occurrence. To establish one-time occurrence, the employer must show that it has not employed workers in the past to perform the service or labor and will not need workers to perform the services in the future, or has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Some examples of H2B visas approved for one-time occurrence include: (1) a production manager for a new technology being introduced to U.S. operations was approved for a one-time occurrence where his duties involved setting up and training personnel, rather than managing on an ongoing basis, (2) an artisan was granted H-2B status to continue to engrave and install religious artifacts in a temple being built by the petitioner or (3) 15 electricians were permitted to fulfill the petitioner’s contractual obligation.
- Seasonal. To claim seasonal need, the employer must establish that the service or labor for which it seeks workers is traditionally tied to a season of the year by an event or pattern, and is of a recurring nature. The employer cannot claim seasonal need if the need is unpredictable, subject to change or when permanent employees are on vacation. Seasonal need can be used to staff establishments during peak season, such as hotels during tourist season.
Some examples of approved H-2B visas seasonal need include (1) dining staff and servers at California and New Jersey resorts for the summer season, (2) ski instructors for ski resorts in the Rocky Mountains, or (3) summer lifeguards in the coastal regions.
- Peakload. To establish peakload need, the employer must show that it regularly employs permanent workers to perform the services or labor at the place of employment and it needs to supplement an otherwise permanent workforce due to seasonal or temporary pick-up in demand under the condition that the temporary H2B workers will not become part of the employer’s regular operation.
H-2B visa for peakload need is appropriate if, for example, a toy manufacturing company makes a product that has suddenly surpassed all sales predictions and expectations. In this case, the company may be able to demonstrate that it has a peakload need for assembly-line workers to meet its unprecedented production demands for the Christmas season.
Another example for peakload need is a trucking company that is experiencing an increased demand for commercial truck drivers due to surging customer demand as it was the case during the COVID-19 (Coronavirus) pandemic.
- Intermittent. Intermittent need is for employers who have not employed permanent or full-time employees in the past to perform a certain job but occasionally or intermittently need temporary workers to perform the work for short periods.
An example of a successful H-2B visa petition for intermittent need is a sports jersey manufacturer that has a need for apparel workers when recurrent surges in production occur around major sporting events (such as the Super Bowl).
Other successful examples of H-2B visa include a petition on behalf of a foreign national actor, whose services were needed to reshoot movie scenes that had been previously filmed, or an H-2B visa petition for foreign nationals who needed to “participate in musical performances” with a nonprofit educational organization.
5. Who is eligible for H2B Visa?
Any US employer that has a one-time, seasonal, peakload or intermittent need for workers and otherwise meets the H-2B visa requirements is eligible for the H2B visa. To find out more about the H-2B visa requirements for employers, visit our page here.
Regarding employees, any worker from one of the countries participating in the H-2B visa program that meets the requirements for the job is eligible can be eligible for H2B visa. To find out more, visit our H-2B visa requirements page.
6. H2B Visa Countries
To qualify for H2B visa, you must be a national of a country eligible to participate in the H2B Visa program.
The H2B Visa Countries in 2022 are:
| H2B Visa Countries | ||
| Andorra | Haiti | Papua New Guinea |
| Argentina | Honduras | Peru |
| Australia | Hungary | Philippines |
| Austria | Iceland | Poland |
| Barbados | Ireland | Portugal |
| Belgium | Israel | Romania |
| Brazil | Italy | Saint Lucia |
| Brunei | Jamaica | San Marino |
| Bulgaria | Japan | Serbia |
| Canada | Kiribati | Singapore |
| Chile | Latvia | Slovakia |
| Colombia | Liechtenstein | Slovenia |
| Costa Rica | Lithuania | Solomon Islands |
| Croatia | Luxembourg | South Africa |
| Republic of Cyprus | North Macedonia | South Korea |
| Czech Republic | Madagascar | Spain |
| Denmark | Malta | St. Vincent and Grenadines |
| Dominican Republic | Mauritius | Sweden |
| Ecuador | Mexico | Switzerland |
| El Salvador | Mongolia | Taiwan |
| Estonia | Montenegro | Thailand |
| Fiji | Mozambique | Timor-Leste |
| Finland | Nauru | Turkey |
| France | Netherlands | Ukraine |
| Germany | Nicaragua | United Kingdom |
| Greece | New Zealand | Uruguay |
| Grenada | Norway | Vanuatu |
| Guatemala | Panama |
7. How to apply for H2B Visa?
H2B visa application process establishes certain recruitment and displacement standards in order to protect US workers. The application process to obtain an H2B Visa starts with the US employer.
To apply for H2B Visa for workers, the employer must take the following steps:
- Submit a Labor Certification Application
- Submit form I-129 to USCIS
- H2B workers apply for visa at US Consulate
A. Submit a Labor Certification application
To hire H2B workers as a US employer you must first obtain a temporary labor certification from the DOL. The temporary labor certification sets wage requirements and employment standards to make sure US workers are not displaced by the incoming H2B workers.
To submit a Labor Certification Application with DOL you must have a prevailing wage determination issued. For emergency filings you are not required to have the prevailing wage determination issued prior to submission.
The Department of Labor uses the prevailing wage determination to ensure that the employer does not pay wages that are lower than the prevailing wage for a given occupation in the geographic area of employment. The prevailing wage for a specified geographic location for an occupation is determined based on data from U.S. Bureau of Labor Statistics and other sources.
After the prevailing wage determination, you submit the temporary labor certification application together with the job order. If DOL certifies the temporary labor application, then you must complete the recruitment of US workers within 14 calendar days from the date the Notice of Acceptance of the labor certification application is issued. However, the employer must accept referrals and applications of all US applicants until 21 days before the employer’s start date.
B. Submit form I-129 to USCIS
If DOL approves the labor certification, then you must submit a petition with USCIS on form I-129 to request H2B workers to be admitted to the US.
You can file one petition with USCIS for more than one H2B worker as long as the job duties and position are the same. Also, the petition does not need to specify the names of the H2B workers, and you can actively recruit abroad or make last-minute changes to the list of employees. However, the H2B workers have to be from H2B visa countries approved by the U.S. Department of State.
Generally, a company can request unnamed H2B workers on I-129 petition filed with USCIS but in certain situations the employer is required to provide the names of the H-2B workers. The employer can also request some named and some unnamed workers as long as the employer is requesting the same action for each worker.
C. H2B workers apply for visa at US Consulate
After USCIS approves the petition, the H2B workers can apply for H2B visas at their local US Consulate to schedule an interview and obtain a valid H2B visa stamp in their passports.
Alternatively, if the H2B workers are in the US then they can change status to H2B while in the United States on form I-129 filed with USCIS.
Canadian citizens can skip the visa interview process and show directly at a port of entry and present their documents to a CBP officer.
8. How to get an H2B Visa?
If you are a worker, to get an H2B visa you must be from one of the countries participating in the H-2B visa program, have a job offer from a US employer and meet the minimum requirements for the job. Once you have this, you can apply for an H-2B visa at your nearest US Consulate by submitting form DS-160 and attending a visa interview. If the consular officer approves your H2B visa, the US Consulate will put an H2B visa stamp in your passport.
If you are an employer, to get H2B visas for your employees you need to establish eligibility and obtain an approved labor certification from DOL and an H-2B petition from USCIS. This involves a number of steps and following rigorous rules and strict deadlines. If you are interested in the H-2B visa, it is recommended that you contact an immigration lawyer immediately to discuss your case.
9. How does the H2B Visa work?
The H2B visa allows US employers to get foreign workers to work in the United States jobs for which the employer has a one-time, seasonal, peakload or intermittent need. The need of the employer for H2B workers is typically recurring every year and employers can participate in the program every year. Employees on H-2B visa can also come to the US every year to work or can extend the stay in the United States to work for employers with approved petitions.
10. How long does the H2B Visa process take?
For employers, the entire H2B visa process takes about 4 to 6 months, including obtaining a prevailing wage determination, conducting the recruitment, obtaining a labor condition application and approval from USCIS.
If you are an employer interested in the H2B visa, we recommend that you speak with an H-2B visa lawyer well in advance or as soon as possible. The H2B visa process has strict deadlines employers must follow and if you do not meet them you will not be able take advantage of the H2B visa program and bring foreign workers for the season.
11. What is the H2B Visa Processing Time?
H2B petitions are processed between 75 to 90 days before the start date of employment. DOL will return H2B petitions filed more than 90 days before the worker is needed.
12. How long can I stay in the US on H2B Visa?
As an H2B worker you can stay in the US for the validity period of the H2B petition plus up to 10 days before the start date of the approved H2B petition and 10 days after the expiration date.
After your H2B visa expires you can stay up to 10 days in the U.S. unless you apply for an H2B visa extension or change your status.
The H2B visa can be extended in 1 year increments but the total period of stay cannot exceed 3 years. Each H2B visa renewal requires a new and valid temporary labor certification covering the requested time.
A worker who held H-2B status or L or H status for 3 years must depart and remain outside the US for 3 months before being able to come back as a H2B worker.
13. How long does an H2B visa last?
Generally, an H2B visa lasts anywhere from 6 to 10 months and an extension of stay can be obtained. You can extend your stay in the United States on an H2B visa for up to 3 years.
14. How long is H2B visa valid?
Generally, an H2B visa is valid for 6 to 10 months, depending on the validity of the employer’s petition. In rare circumstances, the H2B visa can be valid for 12 months or up to 3 years.
The H2B visa is valid from the start date of your employment and until the end date of the employment as stated on the job advertisement. In other words, the H2B visa is valid for the duration of employment.
You also get a grace period of 10 days before the job begins and 10 days after it ends.
15. How long does it take to get an H2B visa?
It usually takes couple of weeks to get an H2B visa, depending on the specific US Consulate where you apply. Some US Consulates process H2B visas within 2 to 3 weeks from the time you submit your H2B visa application and until you get an interview, while others can take 1 month or more.
16. H2B Visa Lottery
There is a limit on how many workers can come to the U.S. each year on an H2B visa. Because there are more applications for H2B workers than visas available, there is a lottery for H2B visas.
Currently, the H-2B visa limit or “cap” is set at 66,000 H2B visas per fiscal year:
- 33,000 H2B visas are for workers who begin employment between October 1 and March 31, and
- 33,000 H2B visas are for workers who begin employment between April 1 and Sept. 30
In unusually busy years the U.S. government can increase the number of H-2B visas available as it did in 2021 by adding an additional 22,000 visas. However, these supplemental H2B visas are only available to businesses that will likely suffer irreparable damage without the ability to employ all the H-2B workers requested.
Workers who will be employed as fish roe processors, fish roe technicians, or fish roe processing supervisors as well as workers going to the Northern Mariana Islands or Guam are exempt from the H2B visa lottery.
17. How much does H2B Visa Cost?
The USCIS processing fee for H2B petition is $460 with regular processing or an additional $1,500 with premium processing. The US employer not the H2B worker pays for the H2B petition.
As an H2B worker, if you need to apply for an H2B Visa at the U.S. Consulate abroad the visa fee is $190.
Malescu Law can assist with H2B visas
Despite its complexity and annual limits on the number of visas available, the H-2B visa program is highly valuable as it allows employers to address temporary labor needs by hiring foreign workers. The H-2B visa is very useful when high demand, seasonal or peak, cannot be met by hiring only U.S. employees.
The process includes a number of safeguards to ensure wages for US workers are not adversely impacted and they are not replaced by foreign workers.
If you are an employer seeking to bring workers from outside the U.S., contact us or schedule an appointment with our experienced H2B Visa lawyer in Miami, Florida USA to assist you with the H-2B visa and application process.
Malescu Law P.A. – Immigration Lawyers
