An H-2B visa is a nonimmigrant visa that allows U.S. employers to fill full-time, temporary, non-agricultural positions with workers from certain foreign countries. H-2B visas are capped at 66,000 per year, and since demand outstrips the number of visas available each year, it is vital that employers set themselves up for success by working with a visa lawyer with expertise in the H-2B process to file timely, thorough applications.
H-2B Visa Employers
To qualify to bring noncitizen workers into the United States on an H-2B visa, employers must be able to demonstrate that they cannot find U.S. workers who are willing, able, qualified and available to do the work, and that the positions are temporary in nature, due to seasonal, intermittent or peak load fluctuations in workflow or a one-time event of a short duration.
This category of visa is particularly popular in certain industries, including food service, hospitality, landscaping, construction, forestry and entertainment. In recent months, an acute shortage of truck drivers has driven up H-2B visa applications in the trucking and transportation industry.
H-2B Visa Cap
Only 66,000 noncitizens can be granted H-2B visas during a fiscal year, which extends from October 1 through September 30. The visas are granted in two batches. Half of them – 33,000 visas – go to workers with job start dates during the first half of the fiscal year, or October 1 through March 31. The other half are reserved for workers who begin working between April 1 and September 30.
In addition to this, on December 20, 2021, the Department of Homeland Security announced an additional 20,000 H-2B visas to be made available for temporary workers seeking employment before March 31, 2022. 13,500 of the supplemental visas will be made available for returning workers who received an H-2B visa during one of the last three fiscal years. The other 6,500 visas are reserved for citizens of Haiti, Honduras, Guatemala, and El Salvador.
Certain workers are exempt from the H-2B cap. These include fish roe processors, fish roe technicians and supervisors of fish roe processing, along with workers already in the United States on an H-2B visa who extend their stay, change employers, or change the terms and conditions of their employment.
The application process consists of three main phases:
- Prospective employer applies for temporary labor certification and other documents from the Department of Labor (DOL).
- Prospective employer submits a petition to United States Citizenship and Immigration Services (USCIS).
- Prospective employee applies for a visa through the Department of State (DOS).
Below is a timetable of when these steps must be completed.
As a U.S. employer or agent, you must begin the application process with the DOL. You must first apply for a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC), which may take up to 60 days to process. This should be done at least 150 days before the worker’s start date.
Next, you must file a job order and an H-2B Application for Temporary Employment Certification (Form ETA-9142B and appendices) between 75 and 90 days prior to the planned start date. The Job Order must be filed with the State Workforce Agency, and the H-2B application with supporting documents and a copy of the job order must be filed with the Chicago National Processing Center (CNPC).
Within seven business days of receipt, the Chicago NPC will notify you whether it has accepted your application and job order. You will be directed to attempt to recruit American workers according to instructions, which will include placing job advertisements and posting notices to current employees, among other steps, within 14 days of the notice, and then submit an initial recruitment report as directed. The Chicago NPC will then issue its final determination about whether your temporary labor certificate is approved.
Employer Files Petition with USCIS
Once your temporary labor certificate is approved, you must file Form I-129, Petition for Nonimmigrant Worker with USCIS. You can include multiple noncitizen workers on the same H-2B petition.
Worker Goes Through Consular Processing
After your petition is approved, each worker can apply for their H-2B visa with the U.S. Department of State (DOS) and attend an interview at a U.S. Embassy or Consulate in their country.
Timing of H-2B Visa Applications
There is more demand for H-2B workers during the spring and summer months, when there is more seasonal work. For work start dates of April 1, 2022, the filing window for the H-2B Application for Temporary Employment Certification will open on January 1, 2022 at 12 a.m. Eastern time. Applications received through the Foreign Labor Application Gateway (FLAG) System during January 1-3 (the three-day peak filing window) will be randomly assigned to groups. Group A will include about 35,000 positions and will be processed first. Employers will be notified if their application was placed in Group A or a lower priority group.
During the three-day peak filing window last January, employers submitted 5,403 applications requesting more than 96,888 worker positions with an April 1, 2021, or later, work start date.
By comparison, the three-day peak filing window (July 3-5, 2021) for start dates of October 1, 2021 or later produced just 873 applications for 21,116 worker positions. Applications were accepted through September 30, 2021. If not enough applications are received to fill the 33,000 cap in the first half of a given fiscal year, those unfilled positions are allotted to the cap for the second half of the year. However, USCIS announced in October 2021 that enough visa applications have been processed to fill the 33,000 cap for the first half of the fiscal year (through March 31, 2022).
Seek Expert Guidance
Especially given the competitive nature of the H-2B visa application process, it’s essential that you seek guidance from a visa lawyer with expertise in H-2B visas. Working with an expert can help ensure that you submit a timely application and that you avoid the filing errors and omissions that can delay or derail your application. If you would like to speak to an H-2B visa lawyer, contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].