Faced with the current labor shortage, companies may consider bringing foreign workers to the U.S. to supplement their labor force on a seasonal or one-time occurrence basis to meet their urgent labor needs. To qualify for H-2B visas, the employment must be geared toward meeting a temporary need. Many jobs in various nonagricultural industries such as landscaping, construction, fishing, hotels, ski resorts, and reforestation may qualify for H-2B visas. The following questions and answers are aimed at providing some basic understanding of H-2B visa requirements and application procedures.
What does temporary need mean?
For H-2B visas, the key concept is temporary need. For instance, a landscaping company may have a seasonal need for additional workers. Due to the seasonal nature of its business activities, the company may have a temporary need for additional workers to work during its busy season that is tied to the weather patterns and reoccurs each year. The busy seasons are typically Spring, Summer and Fall, during which landscaping activities increase, and the increased workload requires additional workforce. During the wintertime which is typically the off-season, the company’s business activities go down, and it will not need the additional workers. To show temporary need, an employer must establish that its employment need is tied to a natural climatic pattern or specific event as set forth in the following scenarios:
Seasonal need: labor is traditionally tied to a season by an event or pattern and is of a recurring nature.
One time occurrence: an employer has not employed people in the past and will not in the future, and a temporary event of short duration has created the need for temporary workers.
Peak load need: labor is needed to supplement the permanent work force and the temporary additions will not become permanent.
Intermittent need: an employer needs labor occasionally or intermittently for a short period of time and has not employed permanent or full-time workers for the position.
What are the steps in the H-2B visa application process?
The application process, involving multiple federal agencies, is a multi-step process. It is often a lengthy and time-consuming process to go through. Therefore, employers must plan ahead and follow the regulatory timelines for each step. From starting the application process to the arrival of the H-2B non agricultural workers ready to work, the process consists of three major steps:
Temporary Employment Certification with the U.S. Department of Labor (DOL): The application process begins with the job order filed with the state employment department and temporary employment certification application with the DOL. Once the DOL issues the notice of acceptance of the employment certification, the employer will be required to conduct a recruitment process to look for qualified, available and willing U.S. workers. If the employer cannot find qualified and willing U.S. workers during the recruitment process, the temporary employment certification will be granted.
Nonimmigrant worker petition with the U.S. Citizenship and Immigration Services (USCIS): After the DOL approves the temporary employment certification, the employer will need to file an H-2B visa petition with the USCIS on behalf of the workers. To support the petition, the employer will supply the USCIS with the approved temporary employment certification and other documentation to establish its temporary need and eligibility for the H-2B visa.
Consular processing: After the USCIS grants the H-2B petition, the application process will shift to the U.S. consulate where the intended foreign workers will submit their visa applications. The consulate will then interview them and determine their eligibility for the visa. If the consulate approves their applications and issues them the H-2B visas, they will be able to use their visas to enter the U.S. and begin working for the employer.
How long can you stay on a H-2B Visa, and can this length be extended?
The initial stay is usually for a period up to 9 months, but this can be extended to up to three years. Even though extension applications are granted, they usually require some showing of extraordinary circumstances. Once three years are up, the holder of the visa must leave and remain outside the U.S. for three months before they are able to apply for an H-2B visa again.
Can I adjust status to a Permanent Resident with a H-2B Visa?
The answer is a qualified yes. You can file for a green card while maintaining your H-2B status. If you marry a U.S. citizen or lawful permanent resident, you can apply for a green card based on the family relationship, namely, marriage. Another pathway to lawful permanent residence is by getting an employer to offer a job to you in the U.S. and then having the employer sponsor you. During this process, the employer is required to advertise the job, and prove that there aren’t people in the U.S. who can or are willing to take the job. In addition, the application can only happen if the job is a full-time permanent job.
As the H-2B visa requires temporary intent to stay in the U.S., either filing the PERM based on employment offer or applying for adjustment of status based on marriage will be considered as indication of your having an intent to immigrate to the U.S. permanently. With the pending PERM or application for adjustment of status based on marriage, immigration officials can reject your reentry into the U.S. if you leave, even with a valid H-2B visa, so be careful leaving the U.S. with a PERM certification or adjustment of status application. In addition, if you are a worker with a H-2B status, you could get in trouble for trying to extend your H-2B status once you have applied for permanent resident status. The application process can get complicated and requires more specific legal guidance from an immigration attorney.
How does the H-2B Visa Cap Work?
The H-2B cap limits the number of H-2B visas available to nonimmigrant workers in the H-2B category each fiscal year. Currently, the cap is set at 66,000 per year. This total is divided into two segments: 33,000 visa numbers are made available on October 1 each year for the first half of the year, while the remaining 33,000 visa numbers are available on April 1 each year for the second half. These limited visa numbers are not sufficient to meet the high demand and are typically used up very quickly after the filing has opened up each year. After the visa numbers are gone, the USCIS will reject H-2B petitions filed by employers.
Are certain workers exempt from the H-2B Visa Cap?
There are exemptions to the annual visa cap, and certain workers are not subject to the numerical limitations. The following jobs are exempt from the visa cap:
Fish roe processors, fish roe technicians, or supervisors of fish roe processing
Workers providing labor/services in the Commonwealth of Northern Mariana Islands or Guam from Nov. 28, 2009, until Dec. 31, 2029.
Can I bring over family members with a H-2B Visa?
Yes, you can. A spouse or child under the age of 21 of an H-2B worker is eligible for an H-4 visa. Keep in mind that the H-4 status doesn’t provide its holder with authorization to work in the U.S.
We are a Eugene Immigration Attorney office ready to help you with your H-2B petitions.
If you are interested in pursuing visas for H-2B workers, we can help. Contact us by calling 541-484-1811 or by emailing bwang@bwanglaw.com.
DISCLAIMER: This Article is for informational purposes only and may not be used in the place of legal advice.