A Guide to the H-2B Program
In 1952, the Immigration and Nationality Act authorized a new nonimmigrant visa category:the H-2 category. The H-2 category was then further split into two sub-categories: H-2B and H-2A. They are both visa categories that allow a qualified U.S. employer or agent to bring in a foreign worker; however, the difference is that the H-2A category is for agricultural work while the H-2B category is for non-agricultural work. In today’s blog, we are going to focus on the H-2B category.
An H-2B visa is a non-immigrant visa that allows for foreign workers to be employed in the U.S. on a temporary basis. Some occupations that would be eligible for H-2B includes: cooks, construction workers, resort and amusement park workers, etc. To qualify under the H-2B category, foreign workers must meet a set of requirements provided by the USCIS:
Qualified U.S. employers or agents must establish that there are not domestic workers in the U.S. who are willing and qualified to complete the work needed.
The hiring of foreign H-2B workers must not negatively impact the working conditions and wages of the other workers at the worksite.
The job vacancy is temporary in nature meaning the U.S. employer or agent has to demonstrate that the need to fill these vacancies is either a one-time occurrence, a short-term occurrence, or a seasonal need that is tied to some sort of pattern such as an annual event or pattern in business.
Because of the employer sponsored nature of the program, it is the duty of the employer to initiate the H-2B process, not the worker. The H-2B process does get very complicated, and it is quite lengthy involving multiple governmental agencies to complete the process. If you are an U.S. employer looking to sponsor foreign workers in the H-2B visa category, it is highly recommended that you start early so that you will have enough time to complete this process.
Obtaining the Prevailing Wage DeterminationObtaining a prevailing wage determination is the first step in the H-2b visa process. The prevailing wage determination is submitted electronically to the U.S. Department of Labor. The prevailing wage determination is the minimum wage set by the Department of Labor that is often based on multiple factors, but mainly on the average minimum wage for the same job category in the geographical area based on the Bureau of Labor Statistics. Employers should keep in mind that the prevailing wage determination can often lead to a higher wage pay for the foreign worker than would be expected.
Recruitment Phase & Filing the Temporary Labor Certification
Upon obtaining the prevailing wage determination, the employer must file a job order with a SWA (State Workforce Agency), a government funded program that helps unemployed Americans find jobs. The SWA will advertise the job opening and try to refer U.S. workers to the hiring employer for consideration. Concurrently, the employer may file the temporary labor certification application via electronic submission with the U.S. Department of Labor. To be successful in their application, employers must submit clear evidence that their need is either a one-time occurrence, seasonal, peak load, or intermittent.
One-Time Occurrence: An example of a one-time occurrence is when the employer has not employed anyone to perform the work before and it will not need workers to perform this work in the future. Another example would involve a job vacancy that is usually of a permanent nature, but a short and temporary occurrence has created a need for more workers.
Seasonal Need: A seasonal need is tied to a season and is of recurring nature; it is not limited to the four calendar seasons (winter, spring, summer, and fall). As such, it may include activities such as fishing season and occurrences that are tied to a season such as the Christmas shopping season.
Peak Load Need: To establish a peak load need, the employer is required to “establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation.” The peak load need must be of limited duration, but can recur on a periodic basis.
Filing the H-2B Petition with USCIS
Once the above standards are met and the Department of Labor certifies the temporary labor certification, it is time to file the actual H-2B petition with the USCIS. The USCIS will review the petition and once the petition is approved, the workers must apply for a visa at their respective consulate abroad. The consular officers will review the visa application and make a determination. The visas received from this process authorizes the workers to enter the United States for a specific period of time to work for the employer listed on the visa stamp.
Applying for a H-2B visa is a very long and complicated process. Therefore it is highly recommended that you consult with an immigration attorney who specializes in this field to assist you with this matter. If you have any questions related to employment of foreign workers in the United States, please contact us by calling 541-465-2173 or by emailing kenna@immigrationoregon.com.
DISCLAIMER: This blog is for informational purposes only and may not be used in the place of legal advice.