Several industries regularly need workers able and willing to fill temporary jobs, such as construction, food services, hotels and motels, and landscaping services. The H-2B program allows US employers in different segments to recruit eligible workers to fill temporary employment gaps.
In this article, you will discover the eligibility requirements of the H-2B visa for US employers and prospective foreign workers.
H-2B Visa Requirements – The Fundamentals
Created to help US employers to prevent the lack of available workers, the H-2B program permits the admission of eligible foreign nationals to the United States to fill temporary nonagricultural jobs.
Please note that this visa category is applied only to nonagricultural jobs, as the H-2A visa program is the category focused on the agriculture segment.
Prospective foreign workers cannot self-petition for H-2B visas. Instead, a US employer or an authorized agent must file Form I-129 (Petition for a Nonimmigrant Worker) on a prospective worker’s behalf.
The application process involves a multi-agency effort, as US petitioners must obtain a temporary labor certification with the US Department of Labor (DOL) before applying with the United States Citizenship and Immigration Services (USCIS).
Once the petitioner’s application is approved, foreign nationals from eligible H-2B countries may apply for the job offers available at a US Embassy or Consulate abroad.
Annually, the Department of Homeland Security publishes the list of H-2B eligible countries using a Federal Register notice. Once published, the designation is valid for one year (counting from the date of publication).
H-2B Visa Requirements – US Petitioner’s Application
During the USCIS application process, the petitioner must meet several requirements that include:
- Proving that not sufficient domestic workers are able, willing, qualified, and available to fill the temporary employment gap
- Demonstrating that the employment of foreign workers will not negatively affect the wages and working conditions of US workers in similar employment
- Showing the need for prospective workers is temporary (regardless of whether the specific job can be described as temporary)
H-2B Visa Requirements – How Does USCIS Define a Temporary Need?
If the petitioner claims a one-time occurrence, the applicant’s situation must involve an employment situation that is otherwise permanent but is experiencing a sudden need for temporary workers due to an event of a short duration.
Additionally, the petitioner must prove that no workers will be required to perform the same services in the future.
If the petitioner claims a seasonal need, USCIS requires the applicant to demonstrate that the service for which the employer is seeking foreign workers has a recurring nature and is traditionally tied to a season of the year by an event or pattern.
It is not possible to claim a seasonal need if the period in which the petitioner does not need foreign workers is unpredictable, subject to change, or a vacation period for permanent employees.
If the petitioner claims a peak-load need, it is fundamental to show the USCIS that:
- The petitioner employs permanent workers to perform the services or labor at the place of employment
- A seasonal or short-term demand requires temporary workers to supplement its permanent staff at the place of employment
- The temporary workers will not become part of the regular operation once the short-term demand is over
If the petitioner claims an intermittent need, USCIS requires evidence that the applicant:
- Has not employed permanent or full-time workers to perform the specific activities for which foreign workers are being requested, and
- Exclusively needs temporary workers to fill occasional or intermittent employment gaps