Chapter 17 Getting a Temporary Nonagricultural Worker (h-2b) Visa

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 17 Getting a Temporary Nonagricultural Worker (H-2B) Visa

A. Do You Qualify for an H-2B Visa?

1. Job Offer From a U.S. Employer
2. Correct Background
3. No Qualified U.S. Workers
4. Intent to Return to Your Home Country
5. Bringing Your Spouse and Children
6. Limitations on Your Period of Stay

B. Possibilities for a Green Card From H-2B Status

C. Quick View of the H-2B Visa Application Process

D. Step One: Your Employer Applies for PWD

E. Step Two: Your Employer Places a Job Order

1. Handling Applications From U.S. Workers
2. Recruitment Report
3. The Employer's Obligation to Retain Documents

F. Step Three: Your Employer Applies for Temporary Labor Certification

1. Filling Out and Assembling the Temporary Labor Certification Application
2. The Temporary Labor Certification Decision

G. Step Four: Your Employer Conducts Recruitment

H. Step Five: The DOL Certifies the Temporary Labor Application

I. Step Six: Your Employer Submits an H-2B Visa Petition

1. Simultaneous Change of Status If You're Already in the U.S
2. Assembling the Visa Petition
3. Mailing the Visa Petition
4. Awaiting a Decision on the Visa Petition

J. Step Seven: Applicants Outside the U.S. Apply to a U.S. Consulate ....427

K. Step Eight: You Enter the U.S. With Your H-2B Visa

L. Extending Your U.S. Stay

1. Step One: Temporary Labor Certification
2. Step Two: Extension Petition
3. Step Three: Visa Revalidation

The H-2B visa was created to allow people to come to the U.S. temporarily to fill nonagricultural jobs for which U.S. workers are in short supply. It's most commonly used for landscapers and groundskeepers, forest and other conservation workers, maids and house cleaners, amusement and recreation attendants, meat, poultry, and fish cutters and trimmers, and waiters/waitresses. A total of 66,000 H-2B visa petitions may be approved during the government year (fiscal year), which ends on September 30. (See I.N.A. § 101(a)(15)(H), 8 U.S.C. § 1101(a)(15)(H).) Relatively recent law effectively divided the fiscal year in two, however, so that no more than 33,000 visas can be passed out during the first six months.

Although the 66,000 total doesn't include H-2B workers in the U.S. seeking to extend status, or accompanying spouses and children, lately the annual quota has not been enough to meet the demand. For this reason, the quota is sometimes raised temporarily or exemptions are made. For example, fish roe processors, fish roe technicians, and supervisors of fish roe processing are currently exempt; as are workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam, until December 31, 2029.

This chapter will explain who is eligible for an H-2B visa and how to apply.

Key Features of the H-2B Visa

Here are some of the advantages and disadvantages of the H-2B visa:

• You can work legally in the U.S. in H-2B status for short periods of time.
• Visas might be available for your accompanying spouse and minor children, but it might not be worth the risk of including them (as described in this chapter) and they may not work, unless they qualify for a work visa in their own right.
• You may travel in and out of the U.S. or remain here continuously until your H-2B status expires.
• The employer must guarantee payment of wages for at least three-fourths of the contract period and the wages must be at or above the federal, state, or local minimum wage or the prevailing wage rate, whichever is highest.
• The employer must also pay or reimburse workers for transportation and visa costs, and must provide workers' compensation insurance.

SEE AN EXPERT

Do you need a lawyer? You can't apply for an H-2B without having an employer first—and it's in your employer's interest to hire a lawyer to help. Because more people have recently been trying to get H-2B visas than there are visas available, a lawyer can help make sure that your application gets done right the first time, and gets filed before the visas run out.

A. Do You Qualify for an H-2B Visa?

H-2B visas are aimed at skilled and unskilled workers, as compared to H-1B visas, which are intended for university-educated workers. There are numerous requirements for obtaining an H-2B visa:

• You must either come from a participating country or qualify for an exception. The list of current H-2B participating countries can be found on the USCIS website (at www.uscis.gov, follow the links to "Working in the U.S.," "Temporary Workers," then "H-2B Non-Agricultural Workers") and is determined by the following factors:

■ The country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal from the United States
■ The number of final and unexecuted U.S. orders of removal against citizens, subjects, nationals, and residents of that country
■ The number of U.S. orders of removal executed against citizens, subjects, nationals, and residents of that country, and
■ Such other factors as might serve the U.S. interest.
To qualify for an exception, people from nonparticipating countries must show that they are the beneficiaries of an approved H-2B petition and that approval would serve the U.S. interest. Factors that USCIS considers in deciding whether to grant such exceptions include:
(1) that a worker with the required skills is not available from among foreign workers from a participating country;
(2) the person has been previously admitted to the United States in H-2B status; (3) the lack of potential for abuse, fraud, or other harm to the integrity of the H-2B visa program; and (4) other factors as might serve the U.S. interest.

• You must have a job offer for fulltime work (at least 35 hours per week) from a U.S. employer to perform work that is temporary, meaning seasonal, one-time, peak load, or intermittent.
• You must have the correct background to qualify for the job you have been offered.
• There must be no qualified U.S. workers willing or able to take the job. A temporary labor certification is required.
• You must intend to return home when your visa expires.

Temporary Agricultural Worker: H-2A Visas

Under the 1986 amendments to the U.S. immigration laws, temporary agricultural workers are now treated differently from all other types of temporary workers. Agricultural workers are now issued H-2A visas while all other temporary workers receive H-2B visas.
The rules for getting temporary agricultural worker visas are extremely complex and beyond the scope of this book. The basic requirements are that before a non-U.S. agricultural worker may be granted an H-2A visa, the prospective employer must attempt to find U.S. agricultural workers. The employer must search for U.S. workers not just in the employer's own immediate geographical area, but throughout the entire adjacent region of the country. The employer must do this by undertaking a multistate recruitment effort.
Moreover, H-2A visas will not, as a practical matter, be issued to foreign workers who are already in the U.S. illegally. Due to the great amount of effort involved in obtaining H-2A visas, they will be attractive mostly to employers who urgently need to bring in a large crew of foreign laborers at one time to work on a particular harvest. From a practical standpoint, the employer might either have to travel abroad or use the services of a foreign labor contractor to find these crews of temporary foreign workers. H-2A visas are not often practical for bringing one temporary agricultural worker at a time to the United States, unless the employer knows of a worker that it wants very badly.

The term temporary refers to the employer's need for the duties performed by the position. There must be a specific beginning and end to the employer's need for your services. Seasonal laborers, workers on short-term business projects, and those who come to the U.S. as trainers of other workers commonly get H-2B visas. A job can be deemed temporary if it is a one-time occurrence, meets a seasonal or peak-load need, or fulfills an intermittent but not regular need of the employer.

H-2B visas are also frequently used for entertainers who cannot meet the criteria for O or P visas. H-2B visas enable such entertainers to come to the U.S. for specific bookings. These bookings are considered temporary positions.

Other jobs that have met the criteria include athletes, camp counselors, craft-persons, horse trainers, and home attendants for terminally ill patients. Although we've just given you some examples of jobs that meet the USCIS's definition of temporary, be aware that most jobs do not.

H-2B Participating Countries

At the time this book went to print, the H-2B participating countries included Andorra, Argentina, Australia, Austria, Barbados, Belgium, Brazil, Brunei, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kingdom of Eswatini (formerly known as Swaziland), Kiribati, Latvia, Liechtenstein, Lithuania, Luxembourg, North Macedonia, Madagascar, Malta, Mauritius, Mexico, Mongolia, Montenegro, Mozambique, Nauru, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Papua New Guinea, Peru, the Philippines, Poland, Portugal, Romania, San Marino, Serbia, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, St. Vincent and the Grenadines, Switzerland, Sweden, Taiwan, Thailand, Timor-Leste, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. If you're not from one of these countries, you can get an H-2B visa only if USCIS determines that it is in the U.S. interest to give you one.

1. Job Offer From a U.S. Employer

You need a specific job offer from a U.S. employer to get an H-2B visa. The employer will have to act as the petitioner in getting your...