Overview

Employers in the U.S. who wish to bring over foreigners as temporary workers can do so by taking advantage of the H-2B program. This program allows the employers to petition for individuals overseas and have them lawfully working in the U.S. for a given period of time. With the H-2B program, employers or agents in the United States can bring workers from overseas to fill temporary, nonagricultural positions. However, the employer or agent needs to meet certain eligibility requirements and file a petition for nonimmigrant worker (I-129 form) on behalf of the potential worker.

Eligibility for H2B Visa:

In order to successfully petition for the H-2B program, employers need to establish the following:

there is a shortage of available workers that are currently able and willing to do the work designated for the nonimmigrant workers;
the wages and working conditions will not be negatively impacted by the H-2B beneficiaries;
the services that the H-2B beneficiaries will be performing is temporary-and proof of its limited duration is required (an unusual occurrence or seasonal employment).

It is also possible to have beneficiaries of the H-2B program if it is established that the worker will be hired under peak load need-in which the workers duties will not become permanent (such as short-term demand).

Peak load need

If a peak load need cannot be established, then the employer needs to establish an intermittent need. The intermittent need shows that the labor and/or services in which the worker will be responsible for has not, nor will not be performed by permanent employees and only on occasion requires the services of the nonimmigrant workers for short periods of time.

H2B Petition Process

Applying for the H-2B Nonimmigrant program involves three stages:

1. the petitioner (employer or agent) is required to submit a temporary labor certification to the Department of Labor;
2. the petitioner (employer or agent) then submits a completed petition for nonimmigrant worker (I-129 form) to USCIS along with the temporary labor certification;
3. the potential nonimmigrant worker overseas then applies for a visa at an Embassy or Consulate office.

Eligibility by country

The H-2B program allows eligibility from a limited selection of countries. The selections of countries which are eligible vary from year to year and all countries listed are eligible for the year they are listed. As of January 18, 2013, nonimmigrant beneficiaries from the following countries are eligible:

Argentina; Australia, Barbados; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Croatia; Dominican Republic; Ecuador; El Salvador Estonia; Ethiopia; Fiji; Grenada; Guatemala; Haiti; Honduras; Hungary; Iceland; Ireland; Israel; Jamaica; Japan; Kiribati; Latvia; Lithuania; Macedonia; Mexico; Moldova; Montenegro; Nauru; The Netherlands; Nicaragua; New Zealand; Norway; Papua New Guinea; Peru; Philippines; Poland; Romania; Samoa; Serbia; Slovakia; Slovenia; Solomon Islands; South Africa; South Korea; Spain; Switzerland; Tonga; Turkey; Tuvalu; Ukraine; United Kingdom; Uruguay; Vanuatu.

It is possible to have a national from a country not listed be approved by the H-2B program, only if the Secretary of Homeland Security determines that it is beneficial to the U.S.

Authorized period of time in H2B status

The H-2B program allows a period of time authorized on the original labor certification. It is possible for employers to extend the duration of the time in one-year increments, as long as the overall duration does not exceed three years. Once the three-year maximum stay period is reached, the nonimmigrant worker is required to depart the U.S. and not re-enter for a period of 3 consecutive months before the worker can re-apply under the H-2B program. However, there are certain exceptions to the 3 month period overseas which can be found on the USCIS website.

H2B nonimmigrant’s family members

The spouse or any unmarried children under 21 years old of the beneficiary can seek entry into the U.S. under a nonimmigrant H-4 classification. Nevertheless, nonimmigrants under H-4 classification are not eligible for employment within the United States so long as they remain under H-4 classification.

Mandatory notifications to USCIS

The employer of an H-2B beneficiary is required to make certain notifications to USCIS regarding the beneficiary. Within 2 workdays, H-2B petitioners should notify USCIS if:

the H-2B beneficiary does not show up to work within 5 days of the employment start date as stated on the original petition or as established by the employer;
the H-2B beneficiary leaves for a period of 5 days without notice and notice of the employer;
the H-2B beneficiary’s employment is terminated prematurely;
the H-2B beneficiary completes the duties or services 30 days prior to the specified date of completion listed on the petition form.

Information To Be Included With The Petition

Petitioners need to include the following information in the employment-related notification:

  1. The reason for the notification (termination, early completion, no show, etc.);
  2. The reason for untimely notification and evidence for cause;
  3. The USCIS receipt number of the approved H-2B petition;
  4. The petitioner’s information, including:
    1. Name;
    2. Address;
    3. Phone number;
    4. Employer identification number (EIN);
  5. The employer/petitioner’s information (if different from that of the petitioner):
    1. Name;
    2. Address;
    3. Phone number;
  6. The H-2B worker’s information:
    1. Full Name;
    2. Date of birth;
    3. Place of birth;
    4. Last known physical address and phone number.

If available, submit the following for each h-2b worker:

Social Security Number;
Visa Number.

A petitioner or employer is prohibited by law from receiving any job placement fees or other form(s) of compensation from an H-2B worker as a condition of employment. Any travel, passport or inspection fees required by the government (DOL, FLSA, case law, etc.), however, are allowed.

If a petitioner receives a prohibited fee, the petitioner is required to notify USCIS about the fee.

Petitioners need to include the following information in the fee-related notification:

  1. the reason for the notification;
  2. the USCIS receipt number of the approved H-2B petition;
  3. the petitioner’s information;
    1. Name;
    2. Address;
    3. Phone number;
  4. the employer/petitioner’s information:
    1. Name;
    2. Address;
    3. Phone number;
  5. information about the recruiter, or placement service to which the beneficiaries paid or agreed to pay the prohibited fees:
    1. Name;
    2. Address.

Notification to USCIS should be made via e-mail to ensure a speedier process. Information regarding methods of notification can be found on the USCIS website. Given the complexity and accuracy required when petitioning for an H-2B Nonimmigrant worker, it is strongly recommended that the petitioner consult an immigration attorney to ensure the most effective and accurate petition process.

Annual number of available h2b visas:

There is a limit, established by congress, on the number of beneficiaries accepted into the H-2B program every year. The limit is currently set at 66,000 beneficiaries per fiscal year. This limit is further divided into two halves allowing a limit of 33,000 beneficiaries in the first half of the fiscal year, and the remaining 33,000 beneficiaries are accepted at the start of the second half of the fiscal year. In the event that the workers accepted into the H-2B program in first half of the fiscal year is less the 33,000, the difference can be allotted in the second half of the fiscal year. It is important, nevertheless, to note that if the number of workers accepted throughout the fiscal year is less than 66,000, the difference cannot be allotted within the next fiscal year. In other words, the available acceptances into the H-2B program do not carry over into the next fiscal year.

There are exemptions from the H-2B cap set by Congress. For example, a worker who has already benefited from the H-2B program and merely extends the duration of his/her stay will not count toward the H-2B beneficiary limit. Furthermore, the spouse and/or children of an H-2B beneficiary do not count towards the beneficiary limit as fish roe technicians, fish roe processors or their supervisors do not as well. Moreover, until December 31st. of 2014, workers in the labor or services field in the Commonwealth of Northern Mariana Islands and/or Guam are also exempt from the H-2B beneficiary limit. USCIS may continue to accept exempt petitioners even after the H-2B limit is reached.

A per July 5, 2013, the total of approved beneficiaries for the second half of the fiscal year was identified as 25,064, with another 1,760 pending beneficiaries. This leaves the second half of 2013 still below the limit at 26,824 thus far. For the first half of 2014’s fiscal year, there are 371 pending beneficiaries.