H-2B: 

Non-Agricultural Workers-

(Seasonal Workers

& One-Time Occurrence Workers)

Are you looking to bring in temporary workers to help you in your business enterprise? The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring aliens to the U.S. to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf. Feel free to contact our Law Office for a Free Consultation to discuss eligibility and to begin the process of bringing in temporary workers to help your business.

Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):

One-Time Occurrence

A petitioner claiming a one-time occurrence must show that it has:

  • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

  • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

 

OR

Seasonal Need

A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

  • Traditionally tied to a season of the year by an event or pattern; and

  • Of a recurring nature.

 

Note – You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

  • Unpredictable;

  • Subject to change; or

  • Considered a vacation period for your permanent employees.

 

OR

 

Peakload Need-

A petitioner claiming a peakload need must show that it:

  • Regularly employs permanent workers to perform the services or labor at the place of employment’

  • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and

  • The temporary additions to staff will not become part of the employer’s regular operation.

 

OR

Intermittent Need-

A petitioner claiming an intermittent need must show that it:

  • Has not employed permanent or full-time workers to perform the services of labor; and

  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Labor Certification

 

H-2B petitioners must also provide a single valid Temporary Labor Certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

What are the H-2B Progress Process Steps?

 

Step 1:

 

Petitioner submits temporary labor certification application to DOL. Before requesting H-2B classification labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be Guam).

Step 2:

Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form -129 with USCIS. With limited exceptions, the petitioner must submit the original temporary labor certification with Form I-129. If the application for a temporary labor certification was processed in DOL’s FLAG system, the petitioner must include a printed copy of the electronic one-page “final determination” of the H-2B temporary labor certification approval with Form I-129. USCIS will consider a printed copy of the final determination as the original and approved temporary labor certification. If a petition has already submitted the original temporary labor certification with a previous Form I-129, submit a copy of the temporary labor certification and provide an explanation that incudes the receipt number of the petition with which the original was filed, if available.

Step 3:

 

Prospective workers outside the U.S. apply for visa and/or admission. After USCIS approved Form I-129, prospective H-2B workers who are outside the U.S. must:

  • Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. embassy or Consulate abroad and then seek admission to the U.S. with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or

  • Directly seek admission to the U.S. in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.

 

H2-B Cap

 

There is a statutory numerical limit, or “cap,” on the total number of aliens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 22,000 for workers who begin employment in the first half of the fiscal year (October 1- March 21) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1- September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Once the H-2B cap is reached, USCIC may only accept petitions for H-2B workers who are exempt from the H-2B cap.

Period of Stay

 

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the U.S. for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception – Certain periods of time spent outside of the U.S. may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit.

Family of H-2B Workers

Any H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the U.S. while in H-4 status.

H-2B Eligible Countries List

 

Except as noted below, H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

 

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

As of January 19, 2019, nationals from the following countries are eligible to participate in the H-2B program:

  • Andorra

  • Argentina

  • Australia

  • Austria

  • Barbados

  • Belgium

  • Brazil

  • Brunei

  • Bulgaria

  • Canada

  • Chile

  • Colombia

  • Costa Rica

  • Croatia

  • Czech Republic

  • Denmark

  • Ecuador

  • El Salvador

  • Estonia

  • Fiji

  • Finland

  • France

  • Germany

  • Greece

  • Grenada

  • Guatemala

  • Honduras

  • Hungary

  • Iceland

  • Ireland

  • Israel

  • Italy

  • Jamaica

  • Japan

  • Kiribati

  • Latvia

  • Lichtenstein

  • Lithuania

  • Luxembourg

  • Macedonia

  • Madagascar

  • Malta

  • Mexico

  • Monaco

  • Mongolia

  • Montenegro

  • Mozambique

  • Nauru

  • The Netherlands

  • Nicaragua

  • New Zealand

  • Norway

  • Panama

  • Papua New Guinea

  • Peru

  • Poland

  • Portugal

  • Romania

  • Samoa

  • San Marino

  • Serbia

  • Singapore

  • Slovakia

  • Slovenia

  • Solomon Islands

  • South Africa

  • South Korea

  • Spain

  • St. Vincent and the Grenadines

  • Sweden

  • Switzerland

  • Taiwan*

  • Thailand

  • Timor-Leste

  • Tonga

  • Turkey

  • Tuvalu

  • Ukraine

  • United Kingdom

  • Uruguay

  • Vanuatu

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