The second type of visa among the H-2 US temporary work visas is the H-2B visa. While the H-2A visa is aimed at temporary and seasonal agricultural workers, the H-2B program is aimed at temporary non-agricultural workers.
The U.S. government allows employers who can demonstrate a temporary need for employees and cannot find them in the United States to hire foreign workers. This is done through H-2B visa sponsors. Foreign workers can then apply for visas after being sponsored and allowed to work in the United States for a specified period.
H-2B visa jobs are designed for a few specific industries that are seeing spikes in demand and demonstrating a need for additional temporary workers. Industries qualified to hire H-2B workers include:
- Hospitality
- Cruise ships
- Resorts and theme parks
- Construction
- Ski resorts
- Golf courses
- Maintenance and cleaning
- Landscaping
- Water parks
- Stores
- Restaurants and bars
- Retail stores
- Sports and athletics, etc.
The difference between the H-2A and H-2B visas is not just that agricultural workers cannot obtain an H-2B visa. It also lies in the fact that the H-2B visa has a limit, while the H-2A visa does not. There is a 66,000 H-2B visa cap each fiscal year. The distinction gets even more precise because each quarter of the fiscal year has a fixed amount of visas available. 33,000 H-2B visas are granted during the first half of the fiscal year, which runs from October 1 to March 31. Thus, an additional thirty-three thousand will be distributed during the second half of the fiscal year, which runs from April 1 to September 30.
The remaining 33,000 visas may be granted in the second half of the fiscal year if they are not all granted in the first. However, if the annual limit is not reached, the difference is not carried forward to the following year.
Who is eligible for an H-2B visa?
The H-2B visa process is initiated by the employer. U.S. businesses, whether public or private, sole proprietorships or corporations, want to hire foreign workers. However, employers should meet some criteria such as:
- Employers must demonstrate that they sought U.S. employees, but there weren’t enough
- That hiring foreign workers will not adversely affect the wages and working conditions of U.S. employees
- Foreign workers will occupy temporary positions
These three conditions are met by obtaining the Department of Labor (DOL) Temporary Worker Certification, detailed below. Additionally, employers must take responsibility for providing the following:
Employee transportation is provided if they have a long commute and are unable to return the same day. If they do not provide transport immediately, they should reimburse employees for expenses at the end of the employment contract.
Three meals a day for the duration of the contract. Employers have the right to charge employees a fee which is deducted from their wages if they provide the three meals. If employers do not provide meals, they should provide cooking facilities where employees cook their own meals.
Fair wages, equal to those of US workers. Employers should consult with the Department of Labor to determine the appropriate hourly wage for foreign workers that is not less than what they would pay for U.S. workers.
In addition to employers, foreign employees or workers must also meet certain conditions:
Must receive a job offer from a US employer:
- They must demonstrate their intention to return to their country of origin once their visa expires
- They must prove they are competent workers for the job being offered in order to be eligible for an H-2B visa.
- They must be from a country listed on the H-2B Eligible Countries List
- The nationals of the following nations are eligible to receive H-2B visas, according to the Department of Homeland Security. The list is updated annually and employers can request to add additional countries.
An employer needs to present these documents to hire a foreign worker who is not on the list:
- A written request to the Department of Homeland Security
- Documents of foreign workers
- Proof that the worker will benefit from the United States by obtaining the H-2B visa
The Department of Homeland Security will then evaluate the request and make a decision. If employers hire foreign workers from countries on or off the list, they are advised to submit two petitions for each group to speed up processing.
What are the requirements for H-2B program employers?
Employers in the H-2B program must follow two steps to obtain permission to hire foreign workers for temporary employment purposes.
Get DOL certified:
All U.S. employers wishing to hire foreign employees must go through the Department of Labor to obtain certification. In the case of the H-2B visa, a temporary labor certification is required. Employers must file and prepare these documents:
- Form ETA-9155 – Application for H-2B Registration (no more than 150 and no less than 120 days before the worker is needed)
- Form ETA-9141 – Application for Determination of Prevailing Wage
- Form ETA-9142 – Application for Temporary Work Certification (no more than 90 and no less than 75 days before the worker is needed)
In addition to these forms, employers must demonstrate that the worker is needed on a temporary basis. There are four types of qualifying temporary work:
One-time event – this means that job positions are generally permanent, but some event has created a situation where a temporary worker is needed. Another scenario is when an employer needs someone right away but has never hired someone for that specific job position and has no intention of doing so in the future.
Seasonal need – meaning there is now a labor shortage because the industry the employer operates in has a traditional cycle of seasonality, but not because of some unpredictability or because permanent employees are on vacation.
Peak demand – meaning that the job position is usually filled by permanent staff, but due to increased short-term demand, the employer needs additional temporary staff.
Intermittent need – which means that the employer does not hire permanent staff for that job position, but always hires temporary staff for short periods of time.
Employers must also demonstrate that they have not found U.S. employees willing, able, qualified or available to perform the work. To prove this, they have to go through a recruitment process. The recruitment process involves posting job advertisements in newspapers and other media. Job postings have to appear in the newspaper for three days in a row. Furthermore, US employees must be able to accept the offer up to 21 days prior to the employer needing the employee’s services.
The employer then needs to provide the Department of Labor with proof of its recruitment efforts in order to be certified. The temporary labor certification is good for three years if approved by the DOL. The employer can then move forward with the following actions.
File a petition with USCIS:
The next step is to file the petition with the United States Citizen and Immigration Services (USCIS). The petition is filed by completing Form I-129 no more than six months and no less than 45 days before an employee need arises. Applications must be submitted individually for each employee and cannot be transferred to other employees.
If USCIS approves the petition, it will issue Form I-797 to the employer. Form I-797 contains the dates when the employer can hire a particular employee and when the employment must end. Employers must respect the work dates, otherwise future petitions may be rejected.
What are the requirements for H-2B employees?
The employee or foreign worker may apply for an H-2B visa once the employer has received all necessary approvals and certifications. They need the following documents:
- Online form DS-160 and receipt
- Form DS-156
- Form DS-157 (if male between the ages of 16 and 45)
- Visa application fee of $205
- Passport
- A photograph that meets the digital image requirements for a US visa
- Job offer from a US employer
- Copies of USCIS approvals (Form I-797 and Form I-129)
- Proof that they plan to go back home, like a future work contract, an apartment rental agreement, or a property deed.
After that, they will schedule a visa interview and attend it. The US Embassy will determine during the interview if they qualify for an H-2B visa. If the visa is approved, the employee requests the visa stamp and can then make travel arrangements to the United States.
The employee is permitted to travel to the United States between the dates indicated on the I-797 employment form.
The H-2 visa is the second nonimmigrant work visa available in the United States. H-2 visas are intended for two categories of workers:
- Temporary agricultural workers with H-2A visas
- Temporary non-agricultural workers on H-2B visas
The H-2A visa is for those who will work in temporary or seasonal agricultural jobs. Seasonal, means that the work occurs during a specified period or event. Temporary means the job takes no more than 1 year to complete.
This makes it possible for American employers who own farms, farms, or corporations to hire workers from other nations. These agricultural laborers will help employers with agriculture-related jobs for a specific period.
There is no limit on H-2A visas. This means that anyone who applies for a visa and gets approval can enter the United States to work, and there are no restrictions on the number of people who can be employed in this work.
How long does the H-2B visa last?
Owing to its temporary nature, the H-2B visa prohibits stays in the United States that exceed a year. So those on an H-2B visa can stay for the period listed on their I-797, but no longer than one year. Applicants should also note that time spent outside the United States also counts as an H-2B stay once the visa is obtained.
The H-2B visa can, however, be extended. If the employer requests an extension, it must have a valid reason why it needs the temporary foreign worker. There are two extensions of one year each for the H-2B visa. Thus, an H-2B visa holder who is a temporary foreign worker may enter the country for a maximum of three years.
After the 3 years, H-2B visa holders can stay in their home country for 3 months before they can reapply for the H-2B visa.
Can I change my status while on an H-2B visa?
Anyone with an H-2B visa in the United States can apply for status changes. If they find a new H-2B employer, the new employer must apply for certification and petition to USCIS to hire the foreign worker.
The H-2B visa holder may also request a change in status from her new employer if she finds employment that requires a different kind of visa. If, for example, the H-2B visa holder finds a temporary agricultural job that requires an H-2A visa, his or her new employer must follow the H-2A visa procedures.
Additionally, you can convert your H-2B visa to a Green Card. Holders of H-2B visas are eligible to apply for family or employment-based green cards.
Why might the US deny an H-2B visa?
The H-2B visa may be denied for several reasons, mainly due to the nature of the temporary work. Some reasons why your H-2B visa might be denied are:
- There were enough available and capable U.S. workers for the job position
- The employer influenced the wages and working conditions of US employees
- The employer did not submit requests and documents within the necessary time
- The employer did not make sufficient efforts to hire US workers
- Employer previously violated H-2B terms and conditions
Can H-2B visa holders bring their families to the United States?
Anyone with an H-2B visa can be accompanied by their spouse and children under 21. Family members will need to apply on an H-4 visa. With the H-4 visa they can enroll in academic courses, but they cannot work. However, if someone with an H-4 visa finds work with an employer willing to sponsor them, they can change status if all necessary conditions are met.