The H-2B program permits United States employers and agents to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs. An H-2B visa is generally used for non-specialty employees who will fulfill a temporary, seasonal, peak-time, or one time employment position. The H-2B classification is commonly used by employers such as hotel resorts, ski resorts, landscaping companies, and entertainment companies that have a regular, temporary need for trained, unskilled labor.
The H-2B application process involves multiple steps and two separate government organizations: United States Citizenship and Immigration Services (USCIS) and the Department of Labor.
Before proceeding with this visa, it is important to determine whether the “cap” has been reached. Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis. Once a sufficient number of applications has been received by USCIS, the cap has been met and no further H-2B applications will be adjudicated for that year. The numerical cap is set based on the United States fiscal year.
The current H-2B cap is set at 66,000 per fiscal year. The cap is split into two parts: 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. Once the H-2B cap is reached, USCIS will only accept petitions for H-2B workers who are exempt from the H-2B cap.
In July of 2017, Congress increased the annual H-2B cap by an additional 15,000 visas. This increase has been described as a one-time occurrence and there is no indication as to whether this increase will be repeated in the future. Furthermore, in addition to meeting the normal H-2B requirements, petitioning employers seeking one of these additional visas must formally attest to the fact that their business will suffer irreparable harm if they are not permitted to retain the sought-after H-2B employees.
H-2B Eligible Countries
Each year, the Department of Homeland Security publishes a list of H-2B eligible countries. Only nationals of these countries are eligible to take part in the H-2B program.
A full list of the countries currently listed as eligible for the H-2B program can be found at the end of this article. This list is subject to change on an annual basis.
First, to meet the qualifications of the H-2B program, a petitioning employer must demonstrate the following with regard to the proposed employment:
- There is not a sufficient number of United States workers who are able, willing, qualified, and available to perform to proposed temporary work;
- Employing the proposed H-2B workers will not negatively affect the wages and working conditions of similarly employed United States workers;
- The petitioning employer’s need with respect to the proposed employment is temporary, regardless of whether the underlying job is considered temporary in nature; and
- The employment must also be full time (35 or more hours per week).
“Temporary need” with respect to the H-2B program is limited to the following situations:
- One-time occurrence – This is defined by USCIS as an employment situation that would otherwise be deemed permanent, but a temporary event of short duration has created the need for only temporary employment.
- To qualify as a one-time occurrence, the petitioner must prove that it has not previously employed workers to perform the proposed service in the past. The petitioner must also demonstrate that it will not need workers to perform the proposed service in the future.
- Seasonal need – USCIS defines seasonal or peak need as employment that is traditionally tied to a season of the year by an event or pattern. The employment need must also be of a consistent recurring nature.
- A petitioner cannot claim a seasonal need if the time period when the proposed employment is not needed is unpredictable, subject to change, or considered a vacation period of permanent employment.
- Peakload need – A petitioner seeking H-2B employees for peakload employment must demonstrate the following:
- The petitioner regularly employs permanent employees to perform the requested services at the place of employment;
- The petitioner needs to temporarily supplement permanent staff at the place of employment due to a seasonal or short-term demand; and
- The temporary staff increase is not intended to become part of the employer’s regular operations.
- Intermittent need – A petitioner seeking an H-2B employees for an intermittent need must demonstrate the following:
- The petitioner has not employed permanent or full-time employees to perform the requested services; and
- The petitioner occasionally or intermittently needs temporary workers to perform employment services for short periods.
H-2B Application Process
There are multiple steps that an employer must take to successfully employ a foreign national under the H-2B program.
Step 1: Prevailing Wage Determination
The first step in securing H-2B temporary need employment is to obtain a prevailing wage determination from the Department of Labor at least 60 days before filing a temporary labor certification. The prevailing wage determination will list the minimum wage for which the petitioner must pay the temporary worker to qualify under the H-2B classification.
Step 2: Temporary Labor Certification
Once a prevailing wage determination has been obtained, the petitioner can begin the process of filing a temporary labor certification with the Department of Labor. This is the most complex step in the H-2B application process and requires the observance of specific steps and time frames.
The petitioning employer must file a job order with the state workforce agency that has jurisdiction over the proposed employment, 75 to 90 calendar days before the proposed employment start date. This will effectively put potential United States workers on notice of the job opening.
At the same time that the job order is filed with the state workforce agency, the petitioner will file an application for temporary labor certification with the Department of Labor. This application must include all necessary supporting documentation and a copy of the filed state workforce job order.
Once the Department of Labor has reviewed the temporary labor certification application, it will notify the petitioner as to whether it will accept or reject the application. If the application is accepted, a Certifying Officer at the Department of Labor will provide the petitioner with instructions on how to proceed with the application process. These instructions will include: placing newspaper advertisements, contacting former United States workers, contacting any relevant bargaining representative or posting notice of the employment position at the place of employment, and conducting any additional recruitment requested by the Certifying Officer.
Once the petitioner has completed all the required recruitment steps, it will complete a recruitment report and submit it to the Certifying Officer. If the Certifying Officer does not find any deficiencies with the report, and otherwise determines that there is no other cause to reject the application, the temporary labor certification application will be approved.
Step 3: Petition Application
Once the Department of Labor issues an approved temporary labor certification, the petitioner can then file an H-2B petition application with USCIS. It is during this application process that the petitioner will have to demonstrate the temporary need and nature of the employment. The application must be submitted with all applicable forms, fees, and supporting evidence. Petition applications can be filed for an individual employee, or for multiple employees.
If USCIS determines that the petitioner has demonstrated that the proposed employment meets the requirements of the H-2B program, the petition will be approved.
Step 4: Consular or Embassy Interview
The final step in the H-2B process is for the proposed employee to attend an interview at the United States consulate or embassy serving the employee’s home country and town. During the interview, a consular officer will review the approved H-2B petition and the proposed employee’s background and qualifications. If there are no issues that prohibit the proposed employee from entering the United States, the visa will be issued and the proposed employee will be permitted to enter the United States.
Period of Stay
H-2B classification is usually granted for the period of time authorized on the temporary labor certification. According to the Department of Labor, this authorization will not be approved for longer than 9 months. The exception to this is the “one-time occurrence need,” which can be approved for up to 3 years.
H-2B classifications can also be extended for qualifying employment in increments of up to 1 year each. However, any extensions to H-2B employment will require a new, approved, temporary labor certification. The maximum period of stay in the United States in H-2B classification is 3 years.
Family of H-2B Employees
Spouses and unmarried children under the age of 21 may accompany an H-2B employee to the United States. The applicable visa category for accompanying family members is H-4. Family members are not permitted to accept employment in the United States as H-4 status-holders, though they may attend school.
As this is a multi-step, several month application process, we recommend commencing application preparation by May or June for the first half of the fiscal year starting October 1, and by November/December to submit applications for the second half of the fiscal year, which can be filed on April 1.
Effective Jan. 18, 2017, nationals from the following countries are eligible to participate in the H-2B program:
· Costa Rica
· Czech Republic
· Dominican Republic
· El Salvador
· The Netherlands
· New Zealand
· Papua New Guinea
· The Philippines
· San Marino
· Solomon Islands
· South Africa
· South Korea
· St. Vincent and the Grenadines
· United Kingdom
To find out if you qualify for the H-2B visa, and how to complete an application, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.
About The Grady Firm, P.C.
The Grady Firm, P.C. is dedicated to providing exceptional legal counsel to entrepreneurs and their families at all stages of the business life cycle. We deliver superior customer service and holistic strategies tailored to each client’s background and goals. As a truly global practice, The Grady Firm attorneys provide the business, immigration, employment, intellectual property, and cultural counseling that U.S. and foreign entrepreneurs need to be successful in a new market. Our tech-savvy, multi-lingual attorneys are fluent in Spanish, Italian, German, and Farsi. They are licensed in California, and can practice immigration and intellectual property in all 50 U.S. states. With offices in Beverly Hills and San Diego, California, the firm serves clients from around the world.
*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.