H-2B visas are useful for employers with temporary labor needs, whether those needs arise due to a special project, new business, seasonal demand shift, or one-time event. It is important to understand the limitations of these visas before working them into a staffing or job search strategy.
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Positions that Qualify for H-2B Status
H-2B visas can only be used for workers who are needed temporarily. In general, the job should be for a period of no more than ten months, but may last for up to three years if it is due to a “one-time occurrence need,” such as a specific project or incident. USCIS is very sensitive to employers misclassifying permanent workers as temporary workers, and so it is necessary to carefully explain the temporary need for the worker, and provide evidence to support that explanation.
For example, H-2B visas have been granted for the following workers:
- A corporate manager coming to the US to help open a new facility
- A technician performing work on a specific construction project
- A housekeeper hired due to the employer’s terminal illness
- A child care worker needed until a teenager graduates high school
- An actor hired for a single film production
- A professional athlete hired for a season
On the other hand, H-2B visas have been denied for the following workers:
- A secretary supporting a foreign executive temporarily posted to the US (although the need was temporary, the position was too generic to be linked to the need)
- A technician on a specific construction project whose employer had previously applied for similar visas for similar workers on other projects (although the workers were each employed temporarily, the need for them was clearly long-term)
- A housekeeper hired due to the employer’s long-term medical problems (here, the need is clearly long-term rather than temporary)
- A child care worker needed until small children graduate high school (here, again, the need is clearly long-term rather than temporary)
H-2B visas can be used for seasonal jobs, and are especially popular for staffing restaurants, hotels, and similar facilities in seasonal tourist areas such as beaches and ski resorts (see: US Visa Options for Restaurant Workers). In such a case, the employer must be able to prove the seasonal nature of demand through documentary evidence.
The Application Process
By law, only 66,000 H-2B visas can be issued for work starting in each fiscal year (October through September). This is split into allocations of 33,000 visas for each six-month period (October through March and April through September). In the 2019-20 and 2020-21 fiscal years, visas for the first half were used up in mid-November, while visas for the second half were used up in mid-February. It is therefore usually impossible to obtain new H-2B visas for jobs starting in the late winter and late summer months, although workers who already have H-2B status can be hired for new temporary jobs during these times (see below).
There is a complicated process to ensure that the wage for the job is fair, and that the H-2B worker will not displace any qualified workers who are already in the US:
- The employer must obtain a prevailing wage determination from the US Department of Labor (DOL), which sets the minimum wage that can be paid for the job. This is done four to nine months before the assignment start date. For assignments starting in October, it is common to request this at the end of June, when the Department updates its wage rate data.
- The employer must apply to DOL for temporary labor certification 75 to 90 days before the start date. The employer must also submit a highly detailed job order to the local state workforce agency, and advertise the job locally.
- While DOL is reviewing the temporary labor certification application, the state workforce agency will review any applications and refer any qualified applicants to the employer. The employer can reject qualified applicants, but it will increase the government’s scrutiny of their H-2B application, so it is necessary to carefully document the reasons for any rejection.
- Once the temporary labor certification is completed, the employer must file Form I-129 with USCIS. This is a petition for the specific worker they would like to hire. This is typically filed two to four weeks before the start date (depending on how long the temporary labor certification process takes).
- After USCIS has approved the petition, the worker can apply for a visa at an embassy or consulate outside the United States. This is usually a quick process since the substantive review of the job and the worker has already taken place in the United States. (If the worker is already in the United States, USCIS approval of the Form I-129 will allow them to start the new job, and no new visa is necessary.)
The dependent spouse and children of an H-2B worker can obtain H-4 visas to live in the United States. This visa category does not allow work in the United States, and extensions and changes of status must be filed separately with USCIS using Form I-539.
Employment Terms
H-2B visas can only be used for full-time employment, meaning at least 35 hours per week. The employee must also be offered work for at least three-fourths of the work days in each 12-week period (6-week period if the term of the contract is less than 120 days).
H-2B workers must also be paid the prevailing wage for their position or the minimum wage, whichever is higher.
If an H-2B worker is dismissed before their assignment is completed, the employer must bear the cost of sending them back to the last foreign country where they resided.
Duration of Status
H-2B status generally continues for the duration of the assignment as described by the employer to DOL and USCIS. A person with H-2B status can change jobs to another H-2B job. In this case, the new employer must still go through the H-2B hiring and sponsorship process, but the employee will not need a new visa, and the annual cap will no longer apply to them.
An individual’s H-2B status can generally be extended to a maximum of three years. Once the three years have ended, the H-2B visa holder must leave the US for at least three months before they can return on H-2B status. Time spent in the US on an L-1, H-1, H-2A, or H-3 visa will also count against this three-year restriction. However, extended time spent abroad can interrupt the counting of the three-year period, which allows further extensions of H-2B status.
It is usually impossible to use an H-2B visa as a “bridge” to obtaining an employment-based green card; in addition to the requirement that H-2B work be temporary (which makes it impossible to get a green card based on an H-2B job), H-2B status would almost always expire while the worker is waiting for the green card to be approved. It is, however, possible for an H-2B visa holder to marry a U.S. citizen or green card holder and adjust status based on the marriage.
Eligible Countries
H-2B visas are limited to countries that have a positive track record in terms of cooperation with US immigration authorities. As of February 2021, nationals of the following countries are eligible for H-2B visas:
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