Sometimes, U.S. employers have a need for employees that cannot be filled domestically. Among those who typically enter the country to work with H-2B visas are landscapers, construction workers, carnival workers, and restaurant/resort workers. Caregiving professions, too, qualify for entry into the United States on a H-2B visa under very limited circumstances.
Fortunately, the H-2B visa program allows U.S. employers who meet the program’s regulatory requirements to fill temporary, non-agricultural jobs with foreign nationals.
What is an H-2B visa?
The H-2B visa program allows non-agricultural workers from certain countries the ability to come to the U.S. to work. The H-2B is a non-immigrant visa, meaning that there is a limit on how long a visa holder may stay in the United States. The length of time an employer can have a worker in the U.S. in any particular year varies based on the justification for the need of that worker. For example, in the event of a one-time occurence justification, the employer can have H-2B workers for up to three years. The visa program establishes a three-year limit, though H-2B visas can be extended by increments of one year up to three years.
These workers may have their spouses and unmarried children under the age of 21 join them in the U.S. by applying for H-4 visa status.
However, neither the H-2B visa holder nor their family members traveling to the United States with them may apply for permanent residency because the H-2B visa is a non-immigrant visa. Every three years, non-immigrants must be outside the U.S. for at least 90 consecutive days.
While the foreign nationals get the benefit of being able to come into the country to earn money, it’s the prospective employer who must apply for the visa on their prospective workers’ behalf. To qualify to apply for worker visas through the H-2B visa program, an employer must establish that
- It could not find enough qualified and available U.S. workers.
- Employing the foreign nationals will not adversely impact the wages or working conditions of similarly situated U.S. workers.
- Its need for the prospective workers is a temporary, one-time occurrence; is required due to seasonal fluctuations in workload; is a supplement to its existing workforce during peak business times; or meets an intermittent, short-lived need.
The H-2B application process involves multiple steps, which take roughly 120–150 days to complete from start to finish. For that reason, employers often choose a seasoned legal team like Farmer Law’s to help them navigate the following steps.
- Prevailing Wage Determination. Employers must submit a Prevailing Wage Determination (PWD) to the U.S. Department of Labor prior to filing a job order with the State Workforce Agency (SWA) or an ETA 9142B with the Department of Labor (DOL).
- Labor certification. Employers must submit a temporary labor certification, Form ETA-9142B, to the U.S. Department of Labor (DOL) and a job order to the State Workforce Agency (SWA) before even beginning the application process with U.S. Citizenship and Immigration Services (USCIS). That certification must state that the employer is in compliance with the qualifying rules outlined above.
- Form I-129. Once an employer has been certified by the DOL, it can then submit a completed Form I-129 to the USCIS. It must also submit the original temporary certification with this form. If, however, the certification was processed in the DOL’s FLAG system, a printed copy of the final determination page should be submitted with the Form I-129 instead.
- Entry application. Once the USCIS has approved H-2B visas, employers must then have foreign nationals whom they intend to employ to apply for admission into the country. They must submit an application form, called a DS-160, with the U.S. Department of State at an embassy or consulate in their home country, as well as seek admission at a port of entry.
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Navigating the 2021 H-2B Requirements
Because of the myriad requirements and steps in the H-2B visa process and achieving H-2B status, it’s a good idea to work with an attorney with experience helping employers navigate this process. Additionally, a cap of 66,000 visas per fiscal year (allocated between the first and second halves of the fiscal year) for 2021 means that the timing of your application is important. An attorney can advise you regarding the best times to apply.
Reaching the H-2B cap doesn’t necessarily mean that employers can’t recruit H-2B workers, as the cap offers some exemptions. However, because of the complex nature of these regulations and processes, a seasoned legal team is best positioned to help you acquire the H-2B workers your business needs.
In addition, recent legislatory focus on immigration issues presents the potential for changing H-2B visa regulations. For example, proposed changes to the H-2A visa program for non-immigrant foreign workers has the potential to impact the H-2B visa program by excluding construction workers from qualifying for H-2A visas, which means they would likely have to be recruited by employers using the H-2B program.
For employers, the duties don’t end when H-2B visa holders are granted entry into the United States. They must also notify the USCIS within two working days if
- An H-2B visa holder fails to report to work within five days of their employment start date or the start date as set by the employer.
- An H-2B visa holder leaves employment without giving notice or fails to report to work for five consecutive workdays without the company’s consent.
- An H-2B worker is terminated before completing the job they were hired to do.
The visa holder finishes doing the work for which they were hired more than 30 days before expected.
If your business needs include recruiting foreign nationals, hiring an experienced legal team that understands the immigration system to help you navigate the process can ensure that you don’t have to take your eyes off your business while dealing with the many requirements of the H-2B visa program. Contact Farmer Law today for help using the H-2B visa program to staff your business.
“The Farmer Law PC team goes above when it comes to keeping us compliant and helping us learn more each day.”
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Reach out to us for any questions on specific U.S. immigration laws, U.S. immigration forms, citizenship applications,
U.S. work visas, or any other aspect of immigration law.