Employers that struggle to fill temporary positions might consider H-2B visas as a possible solution to their hiring needs.
What Is an H-2B Visa?
An H-2B temporary nonagricultural worker visa is a temporary (i.e., nonimmigrant) visa that allows foreign nationals to enter the United States temporarily and engage in nonagricultural employment that qualifies as seasonal, intermittent, a peak load need, or a one-time occurrence.
There’s a statutory numerical limit on the total number of noncitizens who may be issued an H-2B visa or otherwise granted H-2B status during each federal fiscal year, however. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the federal fiscal year (October 1 to March 31), and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 to September 30).
- To qualify for H-2B nonimmigrant classification, the petitioning business (referred to as the petitioner) must establish that:
- There aren’t enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
- Employing H-2B workers won’t adversely affect the wages and working conditions of similarly employed U.S. workers; and
- The 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 qualifies in at least one of the following categories:
- One-time occurrence. A petitioner claiming the employment is a one-time occurrence must show a temporary event of short duration has created the need for a temporary worker, that it hasn’t employed workers for this work in the past, and it won’t need workers to perform this work after the one-time need is satisfied.
- Seasonal need. A petitioner claiming a seasonal need must show the service or labor traditionally is tied to a particular portion of the year based on an event or pattern, and it is recurring by nature.
- Peak load need. A petitioner claiming a peak load need must show that it regularly employs permanent workers to perform the services or labor, it needs to temporarily supplement its permanent staff due to a seasonal (as defined above) or short-term demand, and the temporary additions to staff won’t become part of the employer’s regular operation.
- Intermittent need. A petitioner claiming an intermittent need must show it hasn’t employed permanent or full-time workers to perform the services or labor, and it occasionally or intermittently needs temporary workers to perform the services or labor for short periods.
Occupations Eligible for H-2B Visas
Here are some examples of qualifying employment for H-2B visas:
- One time occurrence: Clean-up or repairs after natural disaster; a nanny for a family who has never hired a nanny in the past—and won’t need a nanny again once their newborn is old enough.
- Seasonal need: Ski instructors; dining staff at hotels or restaurants for the summer season; summer lifeguards in the coastal region.
- Peak load need: Workers for busy periods such as hospitality workers during holiday vacation periods; value-added food processing personnel to process food when the ingredients are ready at harvest time—even if some of the value-added food processing occurs year round.
- Intermittent need: A manufacturing facility that receives large orders from time to time and requires additional temporary hires to fulfill the order.
As these examples illustrate, some situations might qualify under more than one H-2B category and would have more flexibility in demonstrating to the U.S. Department of Labor (DOL) that a given situation qualifies as a seasonal need, a one-time need, peak load need, or an intermittent need. Accordingly, there can be a great deal of strategy and advocacy involved in H-2B visa applications, in addition to the detailed administrative application process described below.
H-2B Eligibility
The U.S. Department of Homeland Security (DHS) issues a list of countries whose citizens are eligible for H-2B visas. It determines which countries qualify based on a number of regulatory criteria, including a country’s level of cooperation with the United States government on immigration and travel documents and the track record of compliance with U.S. immigration rules by individuals from that country, among others.
Currently, citizens of about 80 countries are eligible for H-2B visa sponsorship.
Applying for an H-2B Visa
The H-2B visa process has multiple steps and involves three U.S. government agencies: the DOL, the DHS, and the State Department, which issues visa stamps at U.S. consular posts abroad. This process is outlined below.
Step 1. Analyze whether your need for H-2B workers falls into one of the qualifying categories—seasonal, one-time, peak load, or intermittent need—and whether your potential candidates are from a country that is eligible for H-2B visas. We recommend working with an immigration lawyer. If your hiring qualifies for H-2B visa sponsorship, but you want to hire a large number of H-2B workers (greater than 10) for the same position, it’s probably best that you work with an H-2B visa agency. These agencies specialize in handling numerous H-2B petitions via economies of scale that can’t readily be applied to cases involving H-2B petitions with only a few workers.
Step 2. Draft job descriptions and request a “prevailing wage” from the DOL (which defines a prevailing wage as “the average wage paid to similarly employed workers in a specific occupation in the area of intended employment”) at least 60 days before the registration window opens. The registration window is strict and only open a few days twice a year.
Step 3. File an “Application for Temporary Employment Certification” with the DOL and submit the job order to the state workforce agency where the employment will occur during the H-2B registration window.
Step 4. Upon receiving a notice of acceptance (NOA) from the DOL, conduct all required recruitment activities. Submit the recruitment report to the DOL in accordance with the recruitment activities. If the DOL accepts the recruitment report, it will issue a temporary employment certification (TEC), which allows you to proceed to the next step with DHS.
Step 5. File an “I-129 Nonimmigrant Petition” with the U.S. Citizenship and Immigration Service (USCIS). You may also request a change of status to an H-2B for individuals already in the United States.
Step 6. Some noncitizens (such as Canadians) need only the approved I-129 to enter the United States in H-2B status. For others, after the I-129 is approved (and if USCIS didn’t approve change to H-2B status for the individual already in the United States in another status), the final step is to apply for an H-2B visa stamp at a U.S. embassy or consular post in the worker’s home country.
Once the worker is admitted to the United States on an H-2B visa—or if their status is changed to H-2B from a different status—they are authorized to start work for the petitioning employer. They are authorized to work only for the petitioning employer, only in the position described in the approved H-2B case, and only performing the services described in the approved H-2B case. It’s a serious immigration violation by both the employer and the employee if their employment or work activities go beyond what is described in the approved H-2B case.
H-2B Visa Duration
H-2B visas normally have a predefined start and end date, according to your temporary need. For seasonal or peak load positions that reoccur on a yearly basis, you may use the temporary need registration number issued by the DOL for the subsequent years’ registrations, during the validity period of the registration number.
By doing so, you no longer need to prove the “temporary need” aspect of the H-2B visa every year and can obtain a NOA from the DOL and move to the recruitment stage on a “fast track.”
What to Consider Before You Start
All of your potential H-2B beneficiaries must be from a country on the DOL’s H-2B list, meet any other requirements for the intended temporary aspect of the H-2B visa, and be able to prove to U.S. visa and immigration authorities they are likely to return to their home country after performing the work described in their visa. This can be difficult for applicants to do, especially if they are from countries whose citizens have a track record of remaining in the United States beyond what was described in their H-2B.
The H-2B job offered must be full-time, which the DOL defines as 35 or more hours per week. The employer’s workweek doesn’t need to coincide with the calendar week. It may begin on any day and at any hour of the day, but it must be a fixed and regular recurring period of 168 hours—i.e., seven consecutive 24-hour periods.
If the DOL doesn’t select your H-2B application, you will have some unrecoverable expenses from the application process. However, you can use your already-developed job description, job order, and H-2B application to enter the next H-2B registration for the other half of the federal fiscal year. You will need to rerequest a prevailing wage ahead of time and update any relevant information on your file.
You have the obligation to document the recruitment process. Employers who wish to hire H-2B workers and file an H-2B application with the DOL must retain certain documents for three years. The three-year run begins on the date of certification of their TEC, from the date of adjudication if their TEC application is denied, or from the day DOL receives a letter of withdrawal from an employer that no longer wishes to participate in the H-2B program.
You have the obligation to reimburse the H-2B workers for their international travel per the terms and conditions you have agreed upon in your H-2B application. Your H-2B application won’t be approved by DOL unless this travel reimbursement is included.
Bottom Line
Given all the details involved with an H-2B sponsorship and their temporary nature, there may be other visa types that work better for your needs. Please feel free to contact the author or your attorney to explore visa options for your employment needs.
Becky Fu von Trapp is an attorney with Dinse P.C. in Burlington, Vermont. You can reach her at bfuvontrapp@dinse.com.