|
Overview
The H-2B visa is commonly used for seasonal workers, such as ski instructors, cleaners, hotel and restaurant employees, etc., although it can be used for any occupation where the need for the worker is less than one year. There is no limit to the number of employees you can sponsor for one occupation.
H-2B Visa Requirements
- The job and the employer's need is one time, seasonal, peak load or intermittent.
- The job is for no more than 10 months.
- There are no qualified and willing U.S. workers available for the job.
- The employer will pay the prevailing wage for the position.
H-2B Visa Application Process
Step 1. The prospective employer files a temporary labor certification application with the local State Workforce Agency to test whether there are US workers available and interested.
The application includes:
- Form ETA 750, Part A.
- Documentation of any efforts to recruit U.S. workers the employer may have made before filing the H-2B application.
- A statement explaining why the job opportunity is temporary and why the employer's need for the work too be done meets the standard a one time occurrence, a seasonal need, a peak load need, or an intermittent need. Documentation might include contracts, lists of projects and timeframes, as well as narrative explanations.
The application must be filed between 120-60 days before the need for the H-2B worker, and it may be for more than one position. The employer must pay the prevailing wage for the position.
The local State Workforce Agency oversees the recruiting campaign to test the market for US workers. The recruitment consists of:
- A job order for 10 days in the state job bank.
- An advertisement for the position in a newspaper of general circulation for 3 consecutive days or in a professional, trade or ethnic publication, whichever is most appropriate for the occupation and most likely to bring responses from U.S. workers. The ad will refer workers to the state Workforce Agency, which will forward the resumes to the employer.
The employer must prepare a recruitment report summarizing the results of the effort. This recruitment report includes names and addresses of applicants and lawful reasons for not hiring the applicants.
The Department of Labor Regional Certifying officer will grant certification if he/she finds that qualified persons in the United States are not available for the H-2B position and that the terms of employment will not adversely affect the wages and working conditions of workers similarly employed in the United States.
The temporary labor certification process normally takes about two months.
Step 2. The prospective employer files an I-129 petition for a non-immigrant worker with the United States Citizenship and Immigration Services.
The H-2B petition includes:
- Form I-129, Petition for Nonimmigrant Worker
- Filing fee of $185
- Temporary Labor Certification Approval Notice
- Letter of support from the employer
- Proof that the worker meets the minimum requirements for the position (employment letters, training certificates, etc.)
The H-2B petition normally takes about two months to be processed. For an additional fee of $1000 premium processing is available to guarantee a decision in fifteen business days (unless there is a request for additional evidence). In practice, premium processing is necessary to get the workers to the United States in a timely fashion.
If one of your H-2B workers is already in the United States in another valid nonimmigrant status (i.e. not an overstay), then this worker may be able to change status in the United States through the I-129 H-2B petition. In most cases, the person will not need to return home for a visa.
Step 3. A candidate outside the U.S. must apply for an H-2B visa at a U.S. Consulate or Embassy abroad.
The H-2B visa application includes:
- Form DS-156, Application for a Nonimmigrant Visa
- Form DS-157 (if male between the ages of 16 and 45)
- Filing Fee of $100 + reciprocity fee, if any
- Copy of Notice of Approval of H-2B Petition
- Passport
- One passport-style photo
- Evidence of ties to the home country (family, property, current occupation, etc.)
The Consular officer will to be assured of the applicant's has ties to his/her home country so that he or she will return home at the conclusion of the authorized employment. Such ties include family, property, school, or other jobs. The applicant should take birth certificates of children, a marriage certificate, etc. to the interview. Workers who are denied may be substituted by other applicants, as long as the job does not require any special skills or experience.
Consular processing for the H-2B visa normally takes a few weeks, depending on the schedule of the Consulate.
Upon entry, the H-2B worker will be given a stay that ends when the need for the worker ends, as stated in the nonimmigrant visa petition. The worker may come to the United States 10 days before the authorized work period and stay 10 days later.
Note: If the H-2B worker is terminated early, the employer is liable for paying reasonable transportation costs home.
Timing of the H-2B Visa Process and the H-2B Visa Cap
There are only 66,000 H-2B visas available each fiscal year, and they were used up already by January 4, 2005 of this fiscal year. Unless Congress authorizes more H-2B visas, this will be a recurring problem that may prevent an employer with a peak load in the summer from making use of the program.
It is recommended to begin the H-2B process as early as possible, but no more than 4 months ahead of the time when you will need the H-2B workers.
New H-2B visas become available at the start of the fiscal year on October 1. You can apply for these visas starting June 1.
 Return to top
| 
