What is H2B visa?

The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. This visa is also used for entertainers going on a tour, for film workers or professional minor league players.

What is a 'one-time occurrence'?

The employer must establish that the petitioner has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.

What is a 'seasonal need'?

The employer must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.

What is a 'peak-load need'?

The employer must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

What is an 'intermittent need'?

The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

What is the responsibility of the employer in establishing 'temporary need' for H-2B workers?

The employer has the burden of establishing that the need for H-2B workers is temporary and is either a one time, seasonal, peak, or intermittent need in his/her application. Documentation might include contracts, lists of projects and timeframes, as well as narrative explanations. The existence of a single short term contract in an industry such as construction does not, by itself, document temporary need if the nature of the industry is for long term projects which may have many individual contracts for portions of the overall project. The employer must demonstrate its need is temporary, and is either a one time, seasonal, peak load, or intermittent need.

Is an H-2B visa issued only for temporary jobs?

The nature of the job itself is irrelevant. What is relevant is whether the employer's need is truly temporary. In some situations, the employer's need may create a temporary job opportunity in an employment situation which may otherwise have been permanent in nature. A temporary job opportunity could be created because the incumbent (who holds the position of permanent factory foreman) was injured or is otherwise unavailable for a period of less than one year, or additional workers are needed during a busy period. The temporary period must have a clear beginning and end.

What are the limitations of H-2B visa?

The limitations of H-2B visa are:
The job must be temporary in nature and the need is for one year or less. The employer's need may not be ongoing or continuous 
The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need   
H-2B time counts whether you are in the U.S. or abroad.  
H-2B dependents may not work in the U.S

What are the requirements for H-2B visa employer?

The requirements are:
An U.S. employer may file an application requesting temporary foreign nonagricultural labor certification.
The employer may be an individual proprietorship, a partnership or a corporation. An association of employers may file as a sole employer, a joint employer with its members, or as an agent of its members   
An authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members. Many of the benefits that must be included in a job offer and other conditions that must be satisfied will be dependent upon what prevailing practices exist in the same occupation and area. Employers are advised that it is desirable to make an independent determination of factors such as prevailing wages and employer practices before filing an application.

What is the processing time for H-2B visa?

The employer should file the H-2B petition at least 60 days but not more than 120 days before the worker is needed. As this is a lengthy process, the employer must allow enough processing time for delays and correction of application errors. DOL will return H-2B certification applications filed more than 120 days before the worker is needed.

What is the procedure to obtain a temporary Labor Certification?

A temporary Labor Certification must be obtained from the U.S. Department of Labor to employ temporary or seasonal workers. Before the USCIS can approve an employer's petition for such workers, the employer must file an application with the Department stating that there are not sufficient workers who are able, willing, qualified, and available and that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed U.S. workers.

What is the validity of temporary Labor Certification?

A temporary labor certification is:    
•    Valid only for the number of foreign nationals, the occupation, the area of employment, the specific activity, the period of time, and the employer specified in the certification
•    Limited to one employer's specific job, opportunity; it may not be transferred from one employer to another

Can H-2B labor certification applications filed by job contractors be certified as temporary jobs?

In the vast majority of cases, H-2B applications filed by job contractors may not be approved since they are for permanent jobs. The temporary or permanent nature of the work involved in such applications is determined by examining the job contractor's need for the workers, rather than the needs of its customers. When examined from this perspective, the need for the workers involved in applications filed by job shops is almost always a permanent need. A job contractor, that is in the business of supplying the labor needs to one or more customers, has a permanent need for such workers outside the scope of the particular agreement, and should be informed that he/she may wish to consider filing a permanent application.

Note: In order to meet its burden of proof, such a contractor would need to establish that it had not previously employed workers to perform this particular type of service and that there was no possibility that it would do so again after the performance of the particular contract. Under this scenario, a job contractor might be able to qualify for H-2B status based on the work being either a peak load or a one-time occurrence.

When should the Labor Certification Application be filed?

A complete DOL Form ETA-750, Application for Alien Labor Certification, must be filed at least 60 to 120 days before the first date on which H2B workers are needed. If it is accepted or amended within the required time frame and complies with the regulations, the regional administrator will make a certification determination 30 days before the date on which the workers are needed.

Note: In emergency situations the regional administrator may waive the time period specified, provided the regional administrator has an opportunity to obtain sufficient labor market information on an expedited basis on the U.S. worker availability. However, none of the minimum conditions of employment (wages, housing, and other benefits) are waived.

Under what circumstances can my H-2B visa application be denied?

An H-2B visa application may be denied when:
•    The application did not meet the required time frames (except in emergency situations) and there is not enough time to test the availability of U.S. workers
•    Enough able, willing, and qualified eligible U.S. workers are available to fill all the employer's job opportunities
•    The employer has not complied with the worker's compensation requirements
•    The employer has not satisfactorily complied with positive recruitment requirements
•    The employer, since the application was accepted for consideration, has adversely affected the wages, working conditions, or benefits of U.S. workers
•    After appropriate notice and opportunity for a hearing, the regional administrator determines that the employer has substantially violated a material term or condition of a previous H-2B certification within the last two years.

What if my Labor Certification Application is denied, can I still file with USCIS?

Yes, the DOL decision to grant or deny certification is only advisory to the USCIS.

What are the requirements that should be met by the employer of H-2B work visa applicants?

•    Recruitment: The employer must have made positive efforts to engage U.S. workers. This means an active effort, including newspaper and radio advertising in areas of expected labor supply. This must be an effort independent of and in addition to the efforts of the SWA. In establishing worker qualifications and/or job specifications, the employer must designate only those qualifications and specifications which are essential to carrying out the job and which are normally required by other employers who do not hire foreign workers
•    Wages: The wage or rate of pay must be the same for U.S. workers and H-2B workers. The hourly rate must also be at least as high as the applicable Adverse Effect Wage Rate (AEWR), federal or state minimum wage, or the applicable prevailing hourly wage rate, whichever is higher. The Adverse Effect Wage Rate is established every year by the Department of Labor for every state except Alaska. Employers should consult with the SWA or the Department of Labor regional office to determine what the rate is for their state
•    Housing: The employer must provide free housing to all workers who are not reasonably able to return to their residences the same day. Such housing must be inspected and approved according to appropriate standards. Generally, housing provided must meet the full set of standards established by DOL's Occupational Safety and Health Administration (OSHA). Rental housing which meets local or state health and safety standards also may be provide
•    Meals: The employer must provide either three meals a day to each worker or furnish free and convenient cooking and kitchen facilities for workers to prepare their own meals. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals
•    Transportation: After a worker has completed 50 percent of the work contract period, the employer must reimburse the cost of transportation and subsistence from the place of recruitment to the place of work if such costs were borne by the worker
•    The employer must provide free transportation between the employer's housing and the worksite for any worker who is provided housing
•    Upon completion of the contract, the employer must pay economic costs of a worker's subsistence and return transportation to the place of recruitment. Special conditions apply when the worker will not be returning to the place of recruitment because of another job
•    If the employer must advance transportation costs to foreign workers or provide transportation, the employer must advance such costs or provide transportation to U.S. workers as well. In addition, if it is prevailing practice in the occupation to provide transportation, the employer must provide transportation to the U.S. worker as well.