The H-2B visa classification is available for foreign nationals who come to the U.S. on a temporary basis in order to provide nonagricultural work to meet a one-time, seasonal, peakload, or intermittent need for labor. Barring extraordinary circumstances, H-2B visas authorize employment for one year or less. Use of such visas is not limited to any particular industry but is limited to 66,000, which is the number that Congress allocates to this visa category annually.
Before applying for an H-2B visa, employers must first obtain temporary labor certification from the U.S. Department of Labor (DOL) by demonstrating that American workers are not available for the position and by showing that the employment of foreign nationals will not adversely affect the wages and working conditions of similarly employed workers in the U.S. Employers must also document the nature of the temporary need:
- one-time occurrence: the employer has not employed persons in the past and will not need them in the future, or the employer has permanent employees but due to a temporary event that is of short duration now has a need for temporary workers;
- seasonal need: the employer’s need for labor is tied to a season of the year by an event or pattern and the need is recurring in nature;
- peakload need: the employer has a permanent staff but due to a short-term demand needs additional labor, that will not become part of regular operations, in order to supplement the staff;
- intermittent need: the employer does not regularly employ permanent or full-time workers but occasionally needs workers for short periods of time.
The temporary labor certification process requires employers to advertise the position in accordance with DOL regulations in order to determine whether U.S. workers are available to fill labor needs at prevailing wages, in the area of intended employment, which wages employers are required to pay. The labor certification process may be undertaken for multiple beneficiaries, if multiple identical positions are available, but employers may not request more beneficiaries than job openings. The labor certification application may be filed no earlier than one hundred twenty (120) days before the employment start date or later than sixty (60) days after the start date. If U.S. workers are not available to meet the employer’s temporary labor needs, as evidenced by the response to the advertisements, the DOL will certify the application and, on this basis, the employer may petition the U.S. Citizenship and Immigration Services (USCIS) for one or more H-2B visas.
Foreign national beneficiaries of H-2B visas may be admitted for the time specified in the labor certification application, but may not be admitted for more than one (1) year. A twelve-month (12) extension of the visa is possible, but requires a new labor certification, and extensions may not exceed three years.
Employers have certain obligations when employing H-2B visa workers. In addition to paying prevailing wages, employers must also provide return transportation to the home country, if employment of an H-2B employee is terminated, and must notify the USCIS immediately of termination or of changes in employment terms and conditions of the H-2B worker.
The H-2B visa is a helpful tool in meeting manpower needs in industries where one-time, seasonal, peakload or intermittent work may occur. While the visa is not limited to any particular industry, it is often utilized in the landscaping, construction, hospitality and recreational service industries.