With the growing employment gap experienced by certain industries and business segments, more employers started to accept the H-2B visa’s lengthy requirements as a chance to find legal temporary workers from eligible countries.
How to Hire H2B Workers – The Basic Elements
The H-2B visa is a division of the early H-2 guestworker program, which was divided into two categories – H-2A temporary agricultural visa and H-2B temporary nonagricultural visa.
This nonimmigrant classification permits US employers to apply with the United States Citizenship and Immigration Services (USCIS) to bring foreign workers to fill temporary or seasonal employment gaps in nonagricultural segments.
In most cases, H-2B employers do not require specific or formal education. Except for certain prohibitions on medical school graduates, there are no specific occupational or educational requirements.
Applying for the H2B Visa – Requirements for US Petitioners
The H-2B visa program is a multi-agency effort that involves the USCIS, the US Department of Labor, and the US Secretary of Homeland Security. It is an employer-sponsored program, as prospective workers may not self-petition for a visa.
A US employer or authorized agent must file Form I-129 (Petition for a Nonimmigrant Worker) on a prospective worker’s behalf. In the application process, petitioners must prove that:
- Not sufficient domestic workers are able, willing, qualified, and available to fill the jobs for which foreign labor is being requested
- The employment of foreign temporary workers will adversely affect the wages and working conditions of domestic workers in similar employment
- The need for the prospective workers is temporary (whether the underlying job can be described as temporary or not)
As provided by USCIS, the petitioner’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. Consult with an immigration attorney to identify which option is the best alternative for your case.
Applying for the H2B Visa – Step-by-Step
Obtaining a Temporary Labor Certification
Before filing with USCIS for approval to hire foreign workers under the H-2B classification, US petitioners must apply for a temporary labor certification with the US Department of Labor (DOL).
If the employee’s place of employment will be in Guam, the application must be filed with the Guam Department of Labor. Expert legal counseling is essential to ensure smooth handling of the DOL’s multi-step process.
Filing Form I-129 with USCIS
Once the temporary labor certification is approved, petitioners must file Form I-129 with USCIS. With few exceptions, the form must be submitted with the original copy of the temporary labor certification.
Prospective Foreign Workers Apply for Admission
After the petitioner’s application is approved by USCIS, prospective foreign workers can apply for H-2B visas with the US Department of State at a US Embassy or Consulate abroad. The H-2B visa is restricted to nationals from eligible countries.
Every year, the Department of Homeland Security publishes the list of H-2B eligible countries in a Federal Register notice. After publication, the list of designated eligible countries is valid for one year.