The H-2B visa program permits US employers to bring foreign nationals to the United States to fill temporary or seasonal employment gaps in nonagricultural segments. Keep reading to find out whether it is possible to change employers under the H-2B nonimmigrant classification.
Understanding the H-2B Visa – Essential Elements
In recent years, several industries have relied on the H-2B visa program to fill employment gaps in jobs that domestic workers are unwilling to perform.
Many segments depend on foreign labor to guarantee a temporary or seasonal influx of workers, including employers in construction, food services, hotels and motels, janitorial services, and landscaping services.
The United States Citizenship and Immigration Services (USCIS) permits US employers or authorized agents to file Form I-129 (Petition for a Nonimmigrant Worker) on behalf of prospective foreign workers.
To qualify as an H-2B employer, the petitioner must prove that:
- Not sufficient domestic workers are able, willing, qualified, and available to fill the temporary or seasonal jobs available
- The employment of foreign nationals will negatively impact the wages and working conditions of US workers in similar employment
- The need for foreign workers is temporary (whether the underlying job can be described as temporary or not)
USCIS considers the petitioner’s need as temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.
Prospective H-2B employers must also obtain a valid temporary labor certification from the US Department of Labor (DOL). If the foreign workers will be employed in Guam, the petitioner must apply for the same certification with the Guam Department of Labor (Guam DOL).
Can You Change Employer on H-2B Visa? – The Verdict
Many H-2B visa holders experience uncertainty on whether they can change employers. The validity of an H-2B visa depends on the worker’s continued employment with the employer who filed the USCIS application.
H-2B workers maintain their status by working for the employers who brought them to the United States. To maintain H-2B status, nonimmigrant visa holders cannot change employers without going through the application process once again.
If the worker is willing to handle the due process, it is possible to find alternatives to switch from one US employer to another in specific circumstances.
Can You Change Employer on H-2B Visa? – Feasible Solutions
The first step for H-2B visa holders interested in changing employers is to find another US employer. The employer must meet USCIS requirements and have an updated Foreign Labor Certification Status.
This certification issued by the US Department of Labor (DOL) permits the new employer to employ non-permanent workers. With the guidance of an experienced attorney, it is possible to search for eligible employers in databases listing H-2B worker registered employers.
Once a job offer is secured with an eligible employer, the new employer must file Form I-129 (Petition for a Nonimmigrant Worker) and request the worker’s admission to the new job.
Although the application process is similar, each applicant’s case is different. The best approach is to consult with an expert attorney for an individual assessment.