US Temporary Non-Agriculture Worker H-2B Visas
There are different types of visas that permit foreign nationals to work in the United States for a specific period of time. U.S. Temporary Non-Agricultural (H-2B) Visas are available for foreign workers in non-agricultural fields to work in the United States, given that there is an insufficient number of domestic laborers to fill a position. Employing workers under an H-2B visa must not affect wages or working conditions for U.S. workers in the same field.
US Temporary Non-Agricultural (H-2B) Visas
H-2B visas are generally used for jobs that are temporary but not agricultural – for example, jobs at ski mountains, beach resorts, or amusement parks. For agricultural positions, an H-2A visa is required.
Individuals cannot apply for a visa. An employer or employer's agent must apply for a visa on behalf of the person they wish to hire. The petitioning employer must demonstrate that it has a seasonal need for additional employees, or that it must add workers temporarily due to increased demand. Temporary workers cannot become regular staff, nor can they replace full-time or permanent workers.
Generally, H-2B visas are valid for one year but can be extended incrementally based on one-year periods, with a maximum of three years. Previous time spent in the U.S. under other H- or L-type visas also counts toward the total time limit. However, workers may sometimes recapture time spent outside the U.S. during an authorized stay.
In order to obtain an H-2B visa, an employer must ensure that:
- The specific job they are attempting to fill is temporary in nature, even if the type of work itself is not temporary. The petitioner must prove that the job is a one-time, short-term occurrence, a seasonal need tied to an annual event, season, or pattern, peak time for temporary workers during a busy season, or intermittent need.
- The usage of H-2B employees will not have a negative effect on the working conditions, including the wages, of domestic workers employed in similar fields.
- There are not a sufficient number of domestic workers to be employed or that are willing and able to complete the temporary work.
- The company is appropriately certified by the U.S. Department of Labor.
The countries eligible for H-2B visas is updated yearly by the Department of Homeland Security and the Department of State. The updates for H-2B visas are valid one year from publication.
How to Apply for an H-2B Visa
Applying for an H-2B visa is a three-step process:
- The sponsoring employer must first submit the necessary temporary labor certification to the Department of Labor (U.S. or Guam, depending on their location).
- After receiving a temporary labor certification from the DOL, the employer can then submit an I-129 form to United States Citizenship and Immigration Services (USCIS).
- After USCIS approves Form I-129, prospective workers may apply for a visa and admission. Generally, this means applying for an H-2B visa at a US embassy or consulate and then seeking admission at a port of entry, via U.S. Customs and Border Protection. If a visa isn’t required, workers can be admitted directly by U.S. Customs.
The H-2B Returning Worker Program, which allowed workers who had come to the U.S. in previous years under an H-2B visa to return without counting against the cap, expired in September 2016 and has not been reauthorized by Congress. USCIS urges sponsoring employers not to identify returning workers on their visa applications, as they no longer have exempt status and will, therefore, be counted against the cap.
There is a statutory limitation, or a "cap," placed on the number of workers allowed to enter the country with H-2B visas per each fiscal year. In a fiscal year, 66,000 H-2B cap visas are issued, but 33,000 of them must begin employment in the first half of the year and the other 33,000 in the second half. The Omnibus Spending Bill passed for Fiscal Year 2018 gives the Secretary of Homeland Security the discretion to expand that number to an estimated 100,000 if there is excess demand for workers.
Any unused visas from the first half are rolled over into the second half, but any unused visas from one fiscal year cannot roll over into the next.
H-2B Cap Exemptions
Any workers who have otherwise been counted toward the cap in the same fiscal year are exempt from the cap limit. Additionally, any current H-2B workers either seeing a change of employer or an extension of stay are also exempt.
Any workers employed in the Commonwealth of the Northern Mariana Islands and/or Guam are also exempt from the cap until December 2019. In addition, fish roe processors, fish roe technicians or supervisors of fish roe processing are exempt from the cap. Dependents of H-2B visa holders receive H-4 non-immigrant dependent visas under their beneficiary.
The information contained in this article is not legal advice and is not a substitute for such advice. State and federal laws change frequently, and the information in this article may not reflect your own state’s laws or the most recent changes to the law.