H-2B Non-Immigrant Temporary Visa
The H-2B nonimmigrant program permits employers to hire foreign workers to come temporarily to the U.S. and perform temporary nonagricultural services or labor on a one-time, seasonal, peakload or intermittent basis.
Homeland Security regulations require that the petitioning employer first apply for a temporary labor certification from the Secretary of Labor indicating that: (1) there are not sufficient U.S. workers who are capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the place where the foreign worker is to perform the work; and (2) the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
The H-2B visa allows for temporary employment (approximately 10 months) for persons to work in either a seasonal, peak load or one time occurrence need for a business in the U.S. There are certain requirements for both the business filing the application (the “Petitioner”) and for the person coming to do the job (the “Beneficiary”). The Petitioner must show that the need is either seasonal, peak load, or one time occurrence. The job must be advertised for three consecutive days in a newspaper that covers the area of employment, and the Petitioner must show that there are no qualified workers (or not enough workers) to do the job. The job must be advertised at the “prevailing wage” (not less than market rates) for the geographic area in which the person will work.
Depending on the skill level of the proposed employment, the Beneficiary must show to that he or she is qualified for the job, and prove this through documents from previous employers (translated into English, if necessary).
H-2B Process and Procedure:
- Prior to filing an H-2B application with the Chicago NPC, the employer must first obtain a prevailing wage determination from the National Prevailing Wage and Helpdesk Center (NPWHC), submit a job order to the State Workforce Agency (SWA) serving the area of intended employment, and publish two print advertisements for the position(s), one of which must be on a Sunday.
- The Petitioner files an application with the Department of Labor office in Chicago describing the job, prevailing wage and the recruitment already completed (Recruitment – any responses to the ads are considered; the employer keeps track of any persons responding and why they are not qualified; if qualified persons apply who are interested and willing to take the job, then the application must be withdrawn). The Department of Labor will review and process all H-2B applications on a first in, first out basis.
- If the application is approved, the Petitioner then sends a petition to the USCIS.
- If the petition is approved by USCIS, then the approval is sent to the US consulate in the home country of the Beneficiary. The Beneficiary then must complete the visa application forms and have the evidence ready to prove to the consulate that he/she is able to do the job and will return to the home country. The Beneficiary must also schedule an appointment with the US consulate for an interview on the visa application.
- At the appointment, the Beneficiary will be asked questions by the consular officer. If the consular officer is satisfied that the Beneficiary is eligible for a visa, it will be granted. This process may take several days, depending on the consulate and the results of name and background checks.
- Once the visa is granted, the Beneficiary may enter the U.S. to start employment. The Petitioner must pay the Beneficiary the offered amount or more. The Beneficiary must (in almost all cases) return to the home country after the temporary stay.
An employer seeking H-2B temporary labor certification must attest as part of the Application for Temporary Employment Certification that it will abide by the following conditions:
- The employer is offering terms and working conditions normal to U.S. workers similarly employed in the area of intended employment. The terms and conditions must not be unusual for workers performing the same activity in the area of intended employment, are not less favorable than those offered to the H-2B worker(s), and are not less than the minimum terms and conditions;
- The specific job opportunity for which the employer is requesting H-2B certification is not vacant because the former occupant(s) is on strike or locked out in the course of a labor dispute involving a work stoppage.
- The job opportunity is open to any qualified U.S. worker regardless of race, color, national origin, age, sex, religion, handicap, or citizenship, and the employer conducted the required recruitment and has been unsuccessful in locating sufficient numbers of qualified U.S. applicants for the job opportunity for which labor certification is sought. Any U.S. worker applicants were rejected only for lawful, job-related reasons.
- During the period of employment, the employer will comply with applicable Federal, State and local employment-related laws and regulations, including employment-related heath and safety laws.
- The offered wage equals or exceeds the highest of the prevailing wage, the applicable Federal minimum wage, the State minimum wage, and local minimum wage and the employer will pay the offered wage during the entire period of the approved H-2B labor certification.
- Upon separation from employment of H-2B worker(s) employed under the labor certification application, if such separation occurs prior to the end date of the employment specified in the application, the employer will notify the Departments of Labor and Homeland Security in writing of the separation from employment no later than 2 work days after the separation is discovered by the employer. An abandonment or abscondment is deemed to begin after a worker fails to report for work at the regularly scheduled time for 5 consecutive working days without the consent of the employer.
- The offered wage is not based on commissions, bonuses, or other incentives unless the employer guarantees a wage paid on a weekly, bi-weekly or monthly basis that equals or exceeds the prevailing wage, the legal Federal, State or local minimum wage, whichever is highest. The employer must make all deductions to the worker’s paycheck required by law. The job offer must specify all deductions by law that the employer will make from the worker’s paycheck.
- The employer must attest that it has contractually forbidden any foreign labor contractor or recruiter whom the employer engages in international recruitment of H-2B workers to seek or receive payments from prospective employees.
- The job opportunity is a bona fide, full-time temporary position, the qualifications for which are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations.
- The employer has not laid off and will not lay off any similarly employed U.S. worker in the occupation that is subject to the Application for Temporary Employment Certification in the area of intended employment within 120 calendar days before the date of need through 120 calendar days after the date of need, except where the employer also attests that it offered the job opportunity that is the subject of the application, that the laid off U.S. workers either refused the job opportunity or was rejected for the job opportunity only for lawful, job-related reasons.
- The employer and its attorney or agent have not sought or received payment of any kind from the employee for any activity related to obtaining the labor certification, including payment of the employer’s attorney’s or agent fees, Application for Temporary Employment Certification, or recruitment costs.
- If the employer is a job contractor, the employer must attest that it will not place any H-2B workers with any other employer or at another employer’s worksite unless the employer makes a written bona fide inquiry as to whether the employer’s client has displaced or intends to displace any similarly employed U.S. workers in the area of intended employment within 120 days before or after the date of need and all worksites are listed on the certified Application for Temporary Employment Certification.
- The employer will not place any H-2B workers employed outside of the area of intended employment listed on the Application for Temporary Employment Certification unless the employer has obtained a new temporary labor certification from the Department of Labor.
- Unless the H-2B worker will be sponsored by another subsequent employer, the employer will inform H-2B workers of the requirement that they leave the U.S. at the end of the authorized period of stay and that if the worker is dismissed by the employer prior to the ending of the period, the employer is liable for return transportation.
- The dates of temporary need, reason for temporary need, and number of positions being requested for certification have been truly and accurately stated on the application