H-2B visas: an overview

The H2B visa is designated for individuals who will be employed in positions which are seasonal, intermittent or a onetime occurrence; the H-2B does not cover any agricultural jobs. Examples of qualifying positions include theme park workers, resort or spa workers, and landscaping workers.

Requirements for an H-2B Employer:

Employers are required to meet the following requirements in order to file for an H-2B visa:

1. The job offer must be for a one-time occurrence, seasonal need, peak load need, or an intermittent need. These terms limit the types of employers who may file for an H-2B visa.

2. The job must be for less than one year.

3. There must be no qualified and willing American workers available for the position.

Definitions:

One-Time Occurrence
The employer must establish that it has not employed workers to perform the services or labor the H-2B employee will do in the past and that it will not need workers to perform those services or labor in the future.

Seasonal Need
The employer must establish that the services or labor the H-2B worker will do is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. Traditionally, this applies to summer or winter theme parks. Of note, the employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the employer's permanent employees.

Peak-load Need
The employer must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

Intermittent Need
The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Requirements for an H-2B Employee:

Almost every admissible alien is eligible to become an H-2B worker. To be eligible an alien must meet two requirements:

1. The alien must have a valid job offer from an eligible H-2B employer; and

2. The alien must intend to return to his or her home country at the expiration of the H-2B visa.

Filing procedure:

Generally, there are three things that must be done before a nonimmigrant worker can begin his or her employment.

Labor certification:

The first step in the H-2A visa application process is labor certification. In filing this, the employer must demonstrate that qualified workers are not available in the United States and that the foreign worker's employment will not adversely affect wages and working conditions of similarly employed U.S. workers. The U.S. Department of Labor (DOL) will either grant or deny the labor certification.

Employer's Visa application:

The second step is petitioning the USCIS for the actual H-2B visa with form I-129. If your application is approved, the USCIS will notify the consulate in the alien's country.

Employee's Visa application:

Finally, the alien has to file their own visa application with the consulate in their country. It is important to note that the employer's petition approval does not guarantee the visa approval of the alien. If the alien's visa application is approved, he or she may travel to the U.S.

The experienced and skilled immigration attorneys at Shihab and Associates are prepared to assist you in obtaining an H-2B visa. Whether you need assistance on every aspect or just have a question or two, Shihab and Associates is ready to guide you through the H-2B process. To set up an initial consultation please contact us.