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H-2B Temporary Non-Agricultural Worker

Law Offices of Yu & Associates


What Is the H-2B Nonimmigrant Program?

The H-2B visa is a nonimmigrant work visa that permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis. There is currently a 66,000 visa cap on the number of foreign workers who may receive initial H-2B status during each government fiscal year (October 1 through September 30). The Department of Labor will continue to review and process all H-2B applications on a first in, first out basis, regardless of whether the 66,000 visa cap has been reached.

How Do I Apply for an H-2B Visa?

Employers seeking to employ temporary H-2B workers must file two (2) originals of the Labor Certification Application form directly with the State Workforce Agency (SWA) serving the areas of intended employment. Once reviewed, the SWA will send the complete application to the appropriate National Processing Center (NPC). This process, however, does not apply to employer applications for boilermakers, entertainers, logging and professional team sports, who must abide by special filing instructions.

When filing an application with the SWA, it is not necessary for the employer to name each temporary foreign worker it wishes to employ. An employer may submit a request for multiple unnamed alien workers as long as each worker is to perform the same type of work on the same terms and conditions, in the same occupation, in the same area(s) of intended employment during the same period of time. Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another. To allow time for processing delays and correction of application errors, the employer should file the labor certification application at least 60 days before the worker is needed, but not more than 120 days before the worker is needed in order to ensure a timely test of the labor market.

What Are the Qualifying Criteria for H-2B?

The applicant must be a U.S. employer with a job opportunity located within the U.S. The job opportunity must be temporary. A job opportunity is considered temporary under the H-2B classification if the employer's need for the duties to be performed is temporary, whether or not the underlying job is permanent or temporary. It is the nature of the employer's need, not the nature of the duties, that is controlling.

Part-time employment does not qualify as employment for temporary labor certification under the H-2B program. Only full-time employment can be certified. The period of the petitioner's need must be a year or less, although there may be extraordinary circumstances where the temporary services or labor might last longer than one year. If there are unforeseen circumstances where the employer's need exceeds one year, a new application for temporary labor certification is required for each period beyond one year. However, an employer's seasonal or peakload need of longer than 10 months, which is of a recurring nature, will not be accepted.

What are the Specific Requirements for H-2B?

  1. The job and the employer's need must be one time, seasonal, peak load or intermittent;
  2. The job must be for less than one year; and
  3. There must be no qualified and willing U.S. workers available for the job.

What is the Filing Process for Applying for an H-2B Visa?

  1. The prospective employer files the labor certification to the local State Workforce Agency (SWA) serving the area of proposed employment.
  2. The SWA instructs the employer on recruitment requirements; appropriateness of the wages and working conditions offered and refers qualified U.S. candidates to the employer for interviews.
  3. The employer prepares a recruitment report summarizing the results of the effort. This recruitment report includes names and addresses of applicants and lawful reasons for not hiring the interviewees.
  4. The SWA will forward the application to the National Processing Center (NPC). NPC certifying officer will grant certification if he/she finds that qualified persons in the United States are not available and that the terms of employment will not adversely affect the wages and working conditions of workers in the United States similarly employed.
  5. The employer then submits the H-2B application along with the approved certification to U.S. Citizenship and Immigration Services.
  6. A candidate outside the U.S. applies for a visa at the U.S. Consulate abroad and the employer then provides copies of the above forms to the local USCIS service center.

 

The above is intended as a general introduction and should not be construed as legal advice or legal opinion for your particular case. Please contact the Law Offices of Yu & Associates with any specific questions. Tel: (301) 838-8986, Email: syu@yulegal.com, Address: 110 N Washington St., Suite 328E, Rockville, MD 20850.



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