ABC's
of Immigration: H-2B Visas
What kinds of jobs qualify for H-2Bs?
For
a foreign worker to be covered by an H-2B visa, the job the employer offers
needs three essential criteria:
· The job and the
employer’s need must be one time, seasonal, peak load or intermittent;
· The job must be for
less than one year; and
· There must be no
qualified and willing
When should an employer file for an H-2B visa?
The
employer should file for H-2B status at least 60 days, but not more than 120
days before the worker is needed.
What are the steps an employer must follow to obtain H-2B
certification?
The
employer must go through a seven step process to obtain an H-2B visa:
1. The employer files
a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA)
covering the area of proposed employment.
2.
The SWA informs the employer on requirements for recruitment, wage options, and
working conditions offered and refers qualified candidates to the employer for
interviews. The employer will also be required to advertise the position to
demonstrate a lack of availability of American citizen and permanent resident
workers.
3.
The employer creates a recruitment report summarizing the results of the
effort, including names and addresses of applicants, and reasons for not hiring
particular interviewees. The employer must demonstrate that there are no immediately available citizen or permanent resident
workers willing to work at the prevailing wage (or the actual wage paid by the
employer if higher).
4.
After an evaluation, the SWA will forward the applications to the appropriate
National Processing Center (NPC).
5.
The NPC certifying officer (CO) will review the applications. The CO will grant
certification if he/she finds that qualified persons in the
6.
The certifications/denials are given to the employer, and used to support a
visa petition filed with USCIS. The Labor Certification Determination and the
form I-129 are submitted to the USCIS.
7.
The foreign potential employee must apply for a visa at his or her respective
U.S. Consulate.
How long is an H-2B visa valid?
The
length of stay on an H-2B visa will be granted in increments of up to a year
depending on the anticipated length of the employment period. . The visa may be
extended in one year increments for a total of three years, but USCIS will
often deny extension requests because they question whether a job is really
temporary.
Who is eligible/ineligible for an H-2B visa?
Either
skilled or unskilled workers may be employed on an H-2B visa. The visa is
generally used for entertainers and athletes and who do not meet the
requirements of the O and P visa categories. Recently, the H-2B visa has become
very popular with professions in the hospitality industry.
The
only workers specifically excluded are foreign medical graduates seeking to
perform work in medical fields and agricultural workers.
What documentation must an employer keep on an H-2B worker?
If
the worker is self-employed:
· A contract between the
employer and the worker specifying the wages and terms of employment
·
A
complete itinerary of the planned employment
If
numerous employers are involved:
· The dates of the
proposed employment
· The name and address
of the employers
· List of locations
where the work will be performed
How many H-2Bs are granted per year?
Up
to 66,000 H-2Bs are granted each year with half reserved for jobs with start
dates in the first half of the government fiscal year and the remainder
reserved for the second half. The 66,000 limit does not apply to spouses and
children and they may enter the
What obligations does an employer have in an H-2B case?
The
employer is required to pay the prevailing wage and if an employee is
terminated early, the employer must pay return transportation costs home.
Can an employer substitute workers in an H-2B case?
Yes,
but only if the petition was approved for unnamed beneficiaries, the petition
was for a group or the job does not require education, teaching or experience.
The substitutions can be made at a consulate.