What is the H-2B Visa?
The H-2B visa allows U.S. employers to hire foreign nationals for work in the United States for temporary non-agricultural work.
Who Qualifies for the H-2B Visa?
There are certain requirements that both the employer seeking to hire H-2B visa holders must meet, as well as the visa holders/workers themselves.
To qualify for hiring H-2B workers, the employer must show that:
- Employing H-2B workers will not adversely impact the wages and working conditions of similarly employed U.S. workers;
- The need for workers is temporary, even if the underlying job is temporary;
- There are not enough U.S. workers who are able, willing, qualified, and available to do the work;
- The employer’s place of business must be physically located in the U.S.;
- The employer must have a Federal Employer Identification Number (FEIN);
- The employer must have a means by which it can be contacted for employment;
- The employer’s job opportunities must be:
- Full-time of at least 35 hours or more per week;
- Non-agricultural with specified areas of intended employment
What is Considered Temporary Work?
In order to be deemed temporary work, the work offered by the employer must fall under one of a few categories: one-time occurrence, seasonal need, peak load need, or intermittent need. The employer must be able to show that one of the below categories applies to their situation.
- A temporary event of short duration has created the need for a temporary work in an employment situation that is otherwise permanent;
- The employer has not hired workers to perform the work in the past and will not need workers to do so in the future.
- Work traditionally tied to a season of the year by an event or pattern and is of a recurring nature;
- Does not apply if the work is unpredictable, subject to change, or considered a vacation period for permanent employees.
Peak Load Need
- Employer regularly employs permanent workers to perform the work but needs temporary supplemental staff due to a seasonal or short-term demand and the temporary supplemental staff will not become part of the employer’s regular operation.
- The employer has not employed permanent or full-time workers to perform the work and the employer occasionally or intermittently needs temporary workers to perform work for short periods.
In order to be eligible for the H-2B visa, a worker must be from one of several countries approved by the Department of Homeland Security:
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- North Macedonia
- The Netherlands
- New Zealand
- Papua New Guinea
- San Marino
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
- United Kingdom
What is the Process to Obtain a H-2B Visa?
The process to obtain a H-2B visa is an employer driven process because the issuance of H-2B visas is based on the needs of employers due to a shortage of non-agricultural workers. The steps to obtain H-2B visas are discussed below.
Working Within the Cap
The H-2B visa is subject to a statutory numerical limit on the total numbers of applicants who will ultimately be issued a H-2B visa. The current cap on the H-2B visa is 66,000 per fiscal year, with 33,000 distributed during two six-month periods. When fewer than 33,000 H-2B visas from the first six-month period are distributed, the remaining visas will roll-over to the second six-month period. Visas from one fiscal year do not roll-over to the next fiscal year, however.
Step One: Employer Applies for Domestic Job Order with State Workforce Agency
The employer seeking workers must prepare and submit a non-agricultural job order to the State Workforce Agency (SWA) in the employer’s state, where the work will be performed. This must be done 75-90 days before the date the employer needs workers.
Step Two: Employer Submits Temporary Labor Certification Application
The employer must apply for a temporary labor certification by registering with the Department of Labor 120-150 calendar days before the date the employer needs workers. The employer must then obtain a Prevailing Wage Determination (PWD) from the National Prevailing Wage Center (NPWC) by applying through the FLAG System using Form ETA-9141, Application for Prevailing Wage Determination. The PWD must be obtained 60 calendar days before it is needed.
Step Three: Recruit U.S. Workers
After submitting the labor certification application, the employer must attempt to recruit U.S. workers for the work. The Chicago NPC will notify the employer of where and when to advertise, what content to include in the advertisements, and how to prepare the recruitment report. Recruitment must begin when the employer receives the Notice of Acceptance from the Chicago NPC and must continue until all the recruitment steps are complete.
Step Four: Submit H-2B Application Package with the Department of Labor
After applying for a PWD, the employer must submit the H-2B application package to the Department of Labor’s Chicago National Processing Center (Chicago NPC) by submitting Form ETA-9142B, Application for Temporary Employment Certification and Appendix B; the PWD case tracking number issued by the NPWC; a copy of the job order; and any applicable supporting documentation.
Step Five: Employer Submits Form I-129, Petition for Nonimmigrant Worker
Once an employer receives temporary labor certification from the Department of Labor, Form I-129, Petition for Nonimmigrant Worker must be submitted to the United States Citizenship and Immigration Services (USCIS). The temporary labor certification must be submitted with Form I-129 as initial evidence.
Step Six: Prospective Workers Apply for the H-2B Visa
After the USCIS approves Form I-129, workers who want to come to the United States for non-agricultural work must apply for an H-2B visa with the United States Department of State at a U.S. Embassy or Consulate near the worker. After doing so, the worker must seek admission to the U.S. at a U.S. port of entry. Alternatively, the worker may seek admission to the U.S. under H-2B classification directly at a U.S. port of entry if the worker qualifies for admission without a H-2B visa.
For How Long is the H-2B Visa Valid?
The USCIS will grant H-2A classification for the period of time authorized by the temporary labor certification. The maximum period of stay is 3 years.
Employers may extend the stay of workers on a current H-2B visa contract. For a short-term extension of less than two weeks, the employer must submit Form I-129, Petition for Nonimmigrant Worker again to the USCIS. For a long-term extension of more than two weeks, the employer must also submit Form I-129 to the USCIS and must send a notice to the Chicago NPC explaining the request for extension.
How Much Does it Cost to Get the H-2A Visa?
The application fee for the temporary labor certification is $100, plus $10 per certified work, not to exceed $1,000.
The filing fee for Form I-129, Petition for Nonimmigrant Worker is $460.
The consulate fee for the H-2B worker is $190 per worker, and each worker must be reimbursed in their first paycheck.
The border stamp fee is $6 per worker and agent fees are approximately $100 per worker.