The H-2B visa is a nonimmigrant classification that allows foreign nationals to enter the United States to fill temporary or seasonal nonagricultural jobs. Is it possible to adjust status under an H-2B nonimmigrant visa? Keep reading to find out.
H-2B Nonagricultural Temporary Worker Visa – The Basics
In the H-2B program, the United States Citizenship and Immigration Services (USCIS) requires US employers to apply on behalf of prospective workers. US petitioners must meet a list of strict requirements, such as:
- Demonstrating that not sufficient US workers are able, willing, qualified, and available to fill the employment gap
- Demonstrating that the employment of foreign nationals will not negatively affect the wages and working conditions of similarly employed domestic workers
- Providing evidence that the need for prospective workers is temporary
USCIS considers the petitioner’s need as a temporary need if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. Despite the benefits for several industries and business segments, the H-2B has specific limitations.
Before applying with USCIS, petitioners must obtain a temporary labor certification from the US Department of Labor (DOL). The period of stay on the H-2B visa depends on the period authorized by the DOL.
Under the program, the employment of foreign workers cannot exceed twelve months. USCIS permits employers to file for extensions, which can be obtained for a total of three years in increments of up to one year.
Understanding the H-2B Visa Program – Is it a Dual Intent Visa?
The H-2B nonimmigrant classification is not a “dual intent” visa. Dual intent visas permit foreign nationals to enter the United States under a nonimmigrant status with the option to apply for lawful permanent residence (green card).
The basic requirements for applicants seeking admission to the United States under H-2B visas include:
- Have a valid job offer of employment to occupy temporary or seasonal positions from a US employer
- Be a national of an eligible H-2B country
- Demonstrate to have no immigrant intent
- Demonstrate the intent to depart the United States once the nonimmigrant status has expired
Can H-2B Visa Holders Adjust Status? – An Honest Answer
It is possible to adjust immigration status with USCIS under an H-2B visa. Please note that the switch from one visa to another requires a strategic approach, as different visas involve distinct factors.
In most cases, temporary workers may file for employment-based visas or family-based visas. Similar to the H-2B visa program, employment-based visas require a US employer to sponsor foreign workers and file on their behalf with USCIS.
The employer must complete the PERM labor certification process to certify that no qualified US workers are able, willing, or available for the job offer.
Adjusting status from an H-2B visa to an employment-based visa requires attention to detail. When a US employer files a PERM application on behalf of an H-2B worker, it demonstrates the worker does not intend to leave the United States.
Consult with an expert immigration attorney to avoid uncertainty and ensure a successful adjustment of status.