The U.S. government allows employers who can demonstrate a temporary need for employees and cannot find them in the United States to hire foreign workers. This is done through H-2B visa sponsors. Foreign workers can then apply for visas after being sponsored and given the opportunity to work in the United States for a specified period of time.
H-2B visa jobs are designed for a few specific industries that are seeing spikes in demand and demonstrating a need for additional temporary workers. Industries qualified to hire H-2B workers include:
- Cruise ships
- Resorts and theme parks
- Ski resorts
- Golf courses
- Maintenance and cleaning
- Water parks
- Restaurants and bars
- Retail stores
- Sports and athletics, etc.
The difference between the H-2A and H-2B visas is not just that agricultural workers cannot obtain an H-2B visa. It also lies in the fact that the H-2B visa has a limit, while the H-2A visa does not. The H-2B visa limit is 66,000 visas per fiscal year. The distinction becomes even more specific, as there are a certain number of visas for each part of the fiscal year. In the first part of the fiscal year, from October 1 to March 31, 33,000 H-2B visas are issued. The rest, therefore another 33 thousand, will be given in the second part of the fiscal year, from April 1st to September 30th.
If all 33,000 visas are not granted in the first part of the fiscal year, the remainder may be granted in the second part. However, if the annual limit is not reached, the difference is not carried forward to the following year.
Who is eligible for an H-2B visa?
The H-2B visa process is initiated by the employer. U.S. businesses, whether public or private, sole proprietorships or corporations, want to hire foreign workers. However, employers should meet some criteria such as:
Employers must demonstrate that they sought U.S. employees, but there weren’t enough
That hiring foreign workers will not adversely affect the wages and working conditions of U.S. employees
Foreign workers will occupy temporary positions
These three conditions are met by obtaining the Department of Labor (DOL) Temporary Worker Certification, detailed below. Additionally, employers must take responsibility for providing the following:
- Transportation for employees who need to travel far from their place of residence and cannot return within the same day. If they do not provide transport immediately, they should reimburse employees for expenses at the end of the employment contract.
- Three meals a day for the duration of the contract. Employers have the right to charge employees a fee which is deducted from their wages if they provide the three meals. If employers do not provide meals, they should provide cooking facilities where employees cook their own meals.
- Fair wages, equal to those of US workers. Employers should consult with the Department of Labor to determine the appropriate hourly wage for foreign workers that is not less than what they would pay for U.S. workers.
In addition to employers, foreign employees or workers must also meet certain conditions:
- Must receive a job offer from a US employer
- They must demonstrate their intention to return to their country of origin once their visa expires
- They must be eligible for an H-2B visa by demonstrating that they are skilled workers in the job position being offered
- They must be from a country listed on the H-2B Eligible Countries List
The Department of Homeland Security has determined citizens of countries eligible to obtain H-2B visas. The list is updated annually and employers can request to add additional countries.
The current list of H-2B countries includes these countries:
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
- New Zealand
- North Macedonia
- The Netherlands
- Papua New Guinea
- The Philippines
- Costa Rica
- Czech Republic
- San Marino
- El Salvador
If an employer wishes to hire a foreign worker not on the list, he must provide these documents:
- A written request to the Department of Homeland Security
Documents of foreign workers
Proof that the worker will benefit from the United States by obtaining the H-2B visa
The Department of Homeland Security will then evaluate the request and make a decision. If employers hire foreign workers from countries on or off the list, they are advised to submit two petitions for each group to speed up processing.
What are the requirements for H-2B program employers?
Employers in the H-2B program must follow two steps to obtain permission to hire foreign workers for temporary employment purposes.
Get DOL certified
All U.S. employers wishing to hire foreign employees must go through the Department of Labor to obtain certification. In the case of the H-2B visa, a temporary labor certification is required. Employers must file and prepare these documents:
- Form ETA-9155 – Application for H-2B Registration (no more than 150 and no less than 120 days before worker is needed)
- Form ETA-9141 – Application for Determination of Prevailing Wage
- Form ETA-9142 – Application for Temporary Work Certification (no more than 90 and no less than 75 days before worker is needed)
In addition to these forms, employers must demonstrate that the worker is needed on a temporary basis. There are four types of qualifying temporary work:
One-time event – this means that job positions are generally permanent, but some event has created a situation where a temporary worker is needed. Another situation occurs if the employer has never hired someone for that particular job position and does not plan to do so again in the future, but just needs someone for now.
Seasonal need – meaning there is now a labor shortage because the industry the employer operates in has a traditional cycle of seasonality, but not because of some unpredictability or because permanent employees are on vacation.
Peak demand – meaning that the job position is usually filled by permanent staff, but due to increased short-term demand, the employer needs additional temporary staff.
Intermittent need – which means that the employer does not hire permanent staff for that job position, but always hires temporary staff for short periods of time.
Employers must also demonstrate that they have not found U.S. employees willing, able, qualified or available to perform the work. To prove this, they have to go through a recruitment process. The recruitment process involves posting job advertisements in newspapers and other media. Job advertisements must be published in the newspaper for three consecutive days. Additionally, the offer must be open to US workers up to 21 days before the employer needs the employee’s services.
The employer must then submit documentation demonstrating its recruiting efforts to the Department of Labor in order to qualify for certification. If the DOL approves the temporary labor certification, it is valid for three years. Then the employer can proceed with the next steps.
File a petition with USCIS
The next step is to file the petition with the United States Citizen and Immigration Services (USCIS). The petition is filed by completing Form I-129 no more than six months and no less than 45 days before an employee need arises. Applications must be submitted individually for each employee and cannot be transferred to other employees.
If USCIS approves the petition, it will issue Form I-797 to the employer. Form I-797 contains the dates when the employer can hire a particular employee and when the employment must end. Employers must respect the work dates, otherwise future petitions may be rejected.
What are the requirements for H-2B employees?
After the employer has obtained all approvals and certifications, the employee or foreign worker can proceed to apply for the H-2B visa. They need the following documents:
- Online form DS-160 and receipt
- Form DS-156
- Form DS-157 (if male between the ages of 16 and 45)
- Visa application fee of $205
- A photograph that meets the digital image requirements for a US visa
- Job offer from an American employer
- Copies of USCIS approvals (Form I-797 and Form I-129)
- Evidence that they intend to return to their home country, such as a property deed, an apartment rental agreement or a future employment contract.
After that, they will schedule a visa interview and attend it. During the interview, the US Embassy will evaluate whether they are eligible to obtain an H-2B visa. If the visa is approved, the employee requests the visa stamp and can then make travel arrangements to the United States.
How long does the H-2B visa last?
Since the H-2B visa is temporary, it does not allow stays longer than 1 year in the United States. So those on an H-2B visa can stay for the period listed on their I-797, but no longer than one year. Applicants should also note that time spent outside the United States also counts as an H-2B stay once the visa is obtained.
The H-2B visa can, however, be extended. If the employer requests an extension, it must have a valid reason why it needs the temporary foreign worker. There are two extensions of one year each for the H-2B visa. So, in total, the maximum amount of time a temporary foreign worker can stay in the United States on an H-2B visa is 3 years.
After the 3 years, H-2B visa holders can stay in their home country for 3 months before they can reapply for the H-2B visa.
Can I change status while on an H-2B visa?
Anyone with an H-2B visa in the United States can apply for status changes. If they find a new H-2B employer, the new employer must apply for certification and petition to USCIS in order to hire the foreign worker.
Additionally, if the H-2B visa holder finds jobs that require other visas, she can ask the new employer to change status. If, for example, the H-2B visa holder finds a temporary agricultural job that requires an H-2A visa, his or her new employer must follow the H-2A visa procedures.
You can also switch from an H-2B visa to a Green Card. H-2B visa holders can apply for job-based or family-based green cards.
Why might the US deny an H-2B visa?
The H-2B visa may be denied for several reasons, mainly due to the nature of the temporary work. Some reasons why your H-2B visa might be denied are:
- There were enough available and capable U.S. workers for the job position
- The employer influenced the wages and working conditions of US employees
- The employer did not submit requests and documents within the necessary time
- The employer did not make sufficient efforts to hire US workers
- Employer previously violated H-2B terms and conditions
Can H-2B visa holders bring their families to the United States?
Anyone with an H-2B visa can be accompanied by their spouse and children under 21. Family members will need to apply on an H-4 visa. With the H-4 visa they can enroll in academic courses, but they cannot work. However, if someone with an H-4 visa finds work with an employer willing to sponsor them, they can change status if all necessary conditions are met.