The following is a comprehensive list of the most frequently asked questions about the H-2B visa:
What is meant by one-time occurrence?
The petitioner must establish that the employer has not employed workers to perform the services or labor in the past, and that the employer will not need workers to perform the services in the future. It must also be stated that there is not an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.
A one-time occurrence means that the petitioner has neither used foreign laborers in the past, nor intends to use them in the future. The workers are to be used for a one-time temporary employment only.
What does “intermittent need” mean?
Intermittent need means that the petitioner only has an intermittent need for temporary works to undertake the labor, and he or she does not typically employ full-time or permanent employees to do the work.
What is meant by “peak-load need”?
Peak-load need means that the employer needs temporary workers to support the permanent workforce during periods of peak demand, and the temporary workers will not become permanent members of the workforce.
How do you define “seasonal need”?
The employer establishes that the period of labor or service recurring, and is usually dictated by the season of the year, or by a recurring demand or occurrence. The onus is on the petitioner to declare which portion of the year does not require the use of additional laborers. The portion of the year must not include vacation cover for permanent workers, and it must be predictable and unchangeable.
Are H-2B visas issued for temporary jobs only?
It is the employer’s needs that are declared temporary, not the job itself.
How does the employer establish a temporary need for H-2B workers?
The onus is on the employer to establish that the requirement for H-2B visa holders is temporary to cover seasonal, peak, intermittent or one-off periods of employment. The employer usually provides contracts, written explanations, outlines of projects and their timeframes or any other pertinent documentation.
Does the H-2B visa confer any privileges?
Holders of H-2B visas are allowed to:
- Undertake temporary work in the United States and make use of any employee benefits
- Travel without hindrance into and out of the United States
- Have their dependents reside with them while in the U.S.A.
- Accept a change of job if one is offered
What limitations apply to the H-2B visa?
The specific limitations of the H-2B visa are:
- The employer’s need for foreign workers must be temporary and the duration must not exceed twelve months
- The authorized time on the H-2B visa is counted whether the visa holder is abroad or in the United States.
- Dependents of H-2B visa holders cannot work in the United States
- The onus is on the employer to establish and meet all legal requirements
What legal requirements must employers of H-2B visa holders meet?
United States employers are legally required to:
- Establish that the job is temporary only, and does not exceed a period of 12 months
- Obtain the proper certification
- The employer or its authorized agents must file the application
What legal requirements must H-2B visa holders meet?
Applicants for H-2B visas must:
- Be in possession of a valid offer of employment for temporary/seasonal non-agricultural work from an employer in the United States
- Demonstrate proof of their intent to return to their homeland once their visa has expired
How long can an H-2B visa holder remain in the United States?
Visa holders are permitted to stay in the U.S. only for the period of employment that is shown on Form ETA-750A. The initial period can be 12 months or less. Extensions can be obtained for a total of three years.
Can my stay be longer than 12 months on the H-2B visa?
If ‘extraordinary circumstances’ exist under which an employer needs the temporary worker for a longer duration, the employer can apply for an extension to the visa. Each application for extension is judged on its own merits.
How can I extend the time on my H-2B visa?
Visa holders can apply for an Extension of Stay, but there must be justification for the extension.
Is it possible to change status on the H-2B visa?
Indeed! Visa holders who change employers or jobs may apply to have their status changed on their H-2B visas. The new employer must file Form I-129, the Petition for Non-immigrant Worker, at the appropriate USCIS Regional Service Center.
Can I become a student on the H-2B visa?
Yes! Holders of H-2B visas can undertake periods of recreational or part-time study, but you cannot engage in full-time or any other type of study that interferes with your temporary job.
Can my dependents join me in the U.S. on the H-2B visa?
Absolutely! Dependent spouses and unmarried children under 21 years of age are granted H-4 visas, and are eligible to join H-2B visa holders for the duration of their visas.
Are my dependents eligible to work on their H-4 visas?
Dependents who hold H-4 visas cannot work in the U.S. They must obtain work visas.
Can my dependents undertake study on their H-4 visas?
Holders of H-4 dependent visas may indeed study in the U.S., and they need not apply for the F-1 student visa.
Does the H-2B visa carry any travel restrictions?
Holders of H-2B visas can travel freely, without any restrictions at all.
What is the time frame for processing H-2B visa applications?
Employers must allow a minimum of 60 days, but no more than 120 days, before workers are needed. The process is a lengthy one, so employers need to allow sufficient time for any corrections or other delays.
How does an employer obtain a temporary Labor Certification?
The employer must submit Form ETA-9142 to the U.S. Department of Labor for permission to employ seasonal or temporary laborers. The employer must show proof that there are no available U. S. workers to undertake the work, and that the use of foreign workers will not negatively impact the working conditions or wages of similarly-employed local workers.
What are the limitations of the temporary labor certification?
Each temporary labor certification is:
- Legally valid for the specific time frame, employer, employment and number of foreign workers shown on the certification
- Non-transferable, and is limited to a specific employer and employment opportunity.
Can the H-2B labor certification applications that are filed by job contractors be certified as temporary jobs?
Ordinarily, H-2B applications that are filed by job contractors will not be approved because they are typically for permanent jobs. If a job contractor can establish that the need for workers is indeed temporary, the contractor might qualify for H-2B status on the basis of a one-time occurrence or a peak load requirement.
At what point should employers file the Labor Certification application for H-2B visas?
Employers must complete the DOL Application for Alien Labor Certification, Form ETA-9142, a minimum of 60 days, but no more than 120 days, prior to the first day that H-¬2B workers will begin their labor. In certain circumstances, the time period can be waived.
Will I be notified when my H-2B visa application is being considered?
Your prospective employer will receive written notification from the Certifying Officer if your application is accepted for consideration.
Will I be notified if my H-2B visa application fails to be accepted?
Your prospective employer will receive written notification from the Certifying Officer if your application is not accepted. A Request for Information will be issued, stating:
- Why the application is unacceptable
- Any necessary changes to the application so that it can be accepted for consideration
- The time frame in which the employer must re-submit the application. This is usually seven calendar days
- The protocol for the employer to follow if an appeal is to be made
Can an amended application for the H-2B visa be re-submitted?
An employer may re-submit the amended application within five days of the receipt of the notice of non-acceptance.
What are the circumstances under which my H-2B visa application can be denied?
Visa applications for the H-2B are denied when:
- The time frame requirements are not met
- There are available workers in the U.S. to undertake the work
- Employers do not properly comply with the positive recruitment requirements
- The working conditions, benefits, or wages of U.S. workers are compromised
- An employer has previously breached the terms and conditions of recent H-2B certifications
Where should the H-2B visa application be submitted?
If you are outside of the U.S., submit the application to the American Consulate in your country of domicile.
If you hold legal status within the U.S., submit the application to the appropriate USCIS Service Center.
Can I still file with USCIS if my Labor Certification application is denied?
Am I eligible for a Green Card on H-2B status?
You may certainly apply for a Green card on H-2B status.
How we can help
Are you planning on pursuing H-2B status for yourself or a potential employee? We’re here to help! The experienced staff and attorneys of KPPB Law knows just how to approach your case, ensuring the best possible result. Have a questions? Contact us by calling 703-594-4040 or filling out our online form. Initial consultations are free, contact us today.