If you want to come to the United States to do temporary or seasonal work, you may be able to obtain an H-2B nonimmigrant visa. U.S. employers in many industries often struggle to fill temporary or seasonal positions domestically, and this visa program allows them to petition to hire workers from certain foreign countries on a temporary basis. Below are more details about this program and how to qualify.
H-2B Visa Program
Employers in the food service, hospitality, landscaping, construction, forestry, and entertainment industries are among the largest participants in the H-2B visa program. An H-2B visa is not intended for agricultural workers, who may be eligible for a temporary visa under the H-2A agricultural nonimmigrant visa program.
To qualify for an H-2B visa, petitioning employers must be able to demonstrate several things, including that their need for the worker’s services is temporary. Employers that are significantly busier during certain seasons of the year often need extra labor during peak seasons – such as landscaping companies and beach resorts during the warm months. Employers may also need to hire workers for a one-time occurrence, such as to complete a special project, or on an intermittent basis as workload ebbs and flows.
The petitioner must also demonstrate that there are not enough U.S. workers who are willing, able, qualified, and available to do the temporary work and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
H-2B Visa Application Process
Your prospective U.S. employer or agent must begin the application process by applying for a temporary labor certification from the Department of Labor (DOL). Once the labor certificate is received, the employer must file Form I-129, Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS). After USCIS approves your employer’s Form I-129, you will be notified to submit your H-2B visa application with the U.S. Department of State (DOS) and attend an interview at a U.S. Embassy or Consulate in your country.
Not every temporary worker is eligible for an H-2B visa. You must be a citizen of one of about 80 countries on the approved countries list, as designated by the Department of Homeland Security (DHS). The list, which was last updated on Jan. 19, 2021, includes Mexico, Canada, and countries on all continents. However, there are many exclusions, such as China, Russia, and India. If your country of origin is not on the list, your employer or another interested party could send a written request to the DHS’s Office of Policy or the DOS at the appropriate Embassy or Consulate. DHS, in consultation with DOS, may consider adding countries to the list based on several factors.
Period of Stay
An H-2B visa is generally granted for up to the period of time authorized on the temporary labor certificate. Your visa can be extended for periods of up to one year; a new temporary labor certificate must accompany each extension request. You can not stay in the H-2B classification for more than three years, and previous time spent in other H or L classifications counts toward total H-2B time. If you have held H-2B status for three years, you must leave and remain outside the United States for three months before seeking readmission as an H-2B nonimmigrant.
If you are approved for an H-2B visa, your spouse and unmarried children under age 21 may seek admission under the H-4 nonimmigrant classification. However, this status will not permit them to work in the United States.
Temporary Increase to H-2B Visa Cap
The H-2B program is typically capped at 66,000 visas per fiscal year (Oct. 1-Sept. 30), with 33,000 issued for workers who begin work in the first half of the fiscal year and 33,000 for the second half. To assist employers facing labor shortages in the wake of the pandemic, DHS and DOL published a temporary final rule on May 25, 2021, that made 22,000 additional H-2B visas available for FY 2021. Of these extra visas, 16,000 were reserved for returning H-2B visa workers from one of the last three fiscal years, and 6,000 were indicated for nationals of Honduras, El Salvador, and Guatemala (collectively known as the Northern Triangle). While the additional 16,000 H-2B visas for returning workers have all been spoken for, USCIS is continuing to accept petitions for the extra visas allotted to nationals of the Northern Triangle countries.
If you would like to speak to an attorney about the H-2B visa program, contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].