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THE ABC’S OF IMMIGRATION – H-2B VISAS FOR TEMPORARY NONAGRICULTURAL WORKERS
The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers.  The annual cap on this type of visa is 66,000.  However, because of the limits and requirements of the category, usage of the visa is marginal.  For example, in 1995, only 2,398 H-2B visas were issued.  Nevertheless, in limited circumstances, the visa can be useful. 
The length of the stay on an H-2B visa is limited by the duration of the employer’s temporary need for additional workers.  The maximum authorized period of stay is one year, and the visa may be extended for a total of three years.  However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa.  The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers.  The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories. 
US employers and agents are allowed to petition for temporary H-2B workers.  US agents are allowed to file petitions for self-employed aliens, cases where there will be multiple employers, and cases involving foreign employers.  When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment.  The agent must also provide a complete itinerary of the planned employment.  When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed.  When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent’s authority to act on behalf of the employer.  In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under US immigration law.
One of the most significant restrictions on the H-2B category is the requirement that the need for the foreign worker is temporary.  The Department of Labor recognizes four situations in which there is a temporary need for workers:  recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence.  It is this requirement that makes this visa category so rarely used, not only must the employer promise to employ the worker for a limited period of time, the employer must verify that its need for the worker is temporary. 
A labor certification by the Department of Labor (DOL) is required for the INS to issue an H-2B visa.  The DOL must determine that there are no unemployed, qualified US workers available for the position in the geographical location of the proposed employment, and that employment of the foreign national will not adversely affect the wages or working conditions of US workers.  To satisfy the DOL, the employer must conduct a recruitment campaign.  Before beginning this campaign, the employer should contact the state employment office to discover what type of recruiting efforts will be required in that area.  It is also important to note that a US worker who is otherwise employed, but expresses willingness to take the position recruited for is not considered unemployed. 
The H-2B category could provide a much needed way of working through some of the nation’s labor shortages, but so long as it carries its current stringent requirements, it will likely continue to be underused.
 
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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.