H-2B Visa

Sometimes, U.S. employers have a need for employees that cannot be filled domestically. Finding labor for specific jobs in the United States can have its challenges, leaving employers scrambling to maintain workflow and production schedules with a staff that’s already stretched thin. 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.

Immigration laws and the paperwork surrounding visas can be complex, but the legal experts at Farmer Law can help make the journey smoother. If you’re an employer looking to bring foreign workers into the United States to fill temporary positions, the H-2B visa may be the right choice for you. Farmer Law PC can help you with the paperwork and timeframes of an H-2B visa so that your workflow can stay constant.

What Is an H-2B Visa?

The H-2B visa program allows workers from certain countries the ability to come to the U.S. to work. There are limitations on the number of visas permitted and specific steps to follow in order to apply for this type of visa. While there are some similarities with the H-2A visa, the H-2B program is for seasonal positions that are not in the agricultural industry, as agricultural workers and their employers must use an H-2A visa.

The H-2B visa gives employers the opportunity to fill vacant positions in their companies to keep their workflow consistent or to increase their workforce for busier times of the year. 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. One of the key requirements of an H-2B visa is that the nature of the work itself is temporary and has a definitive end date.

H-2B visas can be an extremely helpful option for specific professions that go through a pattern of high and low seasons or have periods of higher-than-normal traffic. However, employers themselves must do the bulk of the filing for the visas, so it can be a good idea to hire an experienced attorney to guide you through the process.

How can an Immigration Lawyer Help You?

Hiring a legal team that is focused on immigration law can help you decide if the H-2B visa is right for you. Additionally, there are numerous forms to fill out and submit to various federal departments, all within a specific time frame. An H-2B Visa lawyer will:

Determine if an H-2B visa fits your employment requirements
Answer legal questions concerning the specific professions that are allowed under such a visa
Assist with any difficulties in obtaining the visa
Help you complete the necessary forms for visa applications
Walk you through renewal processes

An immigration lawyer can assist you in making sure that you stay on track with your company’s production schedule and can facilitate the visa process through seasonal changes. The H-2B process can be a lengthy one, which means that it’s necessary to forecast future job openings. Let the Farmer Law legal team help you streamline a plan that works for your company.

Let our lawyers help you navigate every facet of immigration law.

Why Hire Farmer Law?

Our team of dedicated lawyers is ready to help with your employment issues. We are an experienced firm that has worked with a wide range of companies to help them manage their hiring processes. Our knowledge of immigration law can help to match filing crucial H-2B applications with your timeline and in lock-step with the ever-changing federal laws. Hire us for our:

Years of immigration law experience
Continued dedication to our clients
Solution-focused problem-solving for our clients
Consistent assistance and rapid response with ongoing paperwork throughout the visa process
Updated knowledge of the shifting immigration laws

With Farmer Law on your side, we can help you stay in compliance, avoid exorbitant fines, and keep your work on schedule. Let us answer your operational questions.

Advantages of an H-2B Visa

An H-2B visa can be an excellent way to bring qualified individuals into the country to fill open positions and create a continuous workflow. The benefits of the H-2B are significant:

It can be extended as needed up until the three-year validity date.
The H-2B visa can be continuously renewed, as long as the pattern of working for three years within the U.S. and leaving the country for three months is followed.
This visa allows the spouse and unmarried children under 21 to join their family in the United States under an H-4 visa, providing a consistent experience for employees.
Recently, the number of H-2B visas issued per year has proved flexible, which indicates that the visa cap may be loosened.

If the H-2B visa and its benefits fit your company’s needs, our team will help you manage the process of filing and submitting the paperwork.

H-2B Visa Occupations

There are a wide range of professions applicable under the H-2B qualifications (excluding agricultural jobs). Among the categories of jobs that may be considered under the H-2B visa are:

Landscapers
Groundskeepers
Construction workers
Processing workers
Poultry and fish cutters
Restaurant workers
Resort workers
Housekeepers
Conservation workers
Waiters
Hotel staff

This is not a complete list of the occupations that fall under the H-2B visa category. For specific questions about your company’s understaffed positions, reach out to Farmer Law PC.

Qualification Requirements

While 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. It’s essential to keep track of your hiring policies and recruitment efforts when looking to bring in foreign nationals to work at your company. While the H-2B visa is a temporary visa, there are other stringent requirements that accompany its application. 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 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

Required Documentation for H-2B Visa Application

As Farmer Law PC starts the process and does much of the paperwork, we’ve assembled a list of required documents for the H-2B visa application process:

Form ETA 9141
Form ETA 9142B
Form I-129
Form DS-160 (filled out by the employee applicant)

Even with all these documents compiled, each must also be submitted to the proper department in the correct time frame. In some cases, the same form must be submitted in several places. Below, we go into more specifics on the submission process.

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H-2B Visa Application Process

The H-2B application process involves multiple steps, from prevailing wage determination, labor certification, and entry application, all of 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:

Submit a Prevailing Wage Determination (PWD) to the U.S. Department of Labor.
File a job order with the State Workforce Agency (SWA) or an ETA 9142B with the Department of Labor (DOL).
Submit Form ETA-9142B, a temporary labor certification, to the U.S. Department of Labor (DOL).
Submit a job order to the State Workforce Agency (SWA) stating that the employer is in compliance with the qualifying rules outlined above.
Submit a completed Form I-129 to the United States Citizenship and Immigration Services (USCIS).
- Employers 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.

After the USCIS approves the H-2B visas, employees must begin their half of the process. Foreign nationals have to apply for a visa and submit application form DS-160. They will also need to go through an interview process before their application is approved.

Navigating the 2023 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) means that the timing of your application is important. If you do require workers during specific months, it would be wise to consult with an attorney at Farmer Law. An attorney can advise you regarding the best times to apply.

While 66,000 might seem like a very particular number, it should be noted that there are some exceptions. For example, reaching the H-2B cap doesn’t necessarily mean that employers can’t recruit H-2B workers, as the cap offers some exemptions to specific professions, including roe processors or fish roe technicians, as well as workers who are performing their jobs in certain locations. Additionally, this cap may be subject to change depending on regulations; as recently as 2023, over 60,000 extra H-2B visas were issued, a record number that nearly doubles the original cap.

Immigration law remains a large topic of debate in the legislative branch of government. Legislatory focus on immigration issues presents the potential for changing H-2B visa regulations. Proposed changes to the H-2A visa program for non-immigrant foreign workers have the potential to impact the H-2B visa program by excluding construction workers from qualifying for H-2A visas. This bill, HR5038, was passed by the House but remains lingering in the Senate.

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. Farmer Law is here to help guide you through the changes occurring in immigration law.

Ongoing Requirements

For all the benefits of H-2B visas, they do require constant monitoring and maintenance. For employers, the duties don’t end when H-2B visa holders are granted entry into the United States. Apart from keeping specific records on their worker’s attendance, 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 the expected end date

Additionally, if you intend to renew an H-2B visa, that process must be done in a timely fashion so that your employees can continue working without having to leave the country. Our legal team can help you stay on top of the numerous forms that are necessary to complete this task and make sure that your workforce stays consistent when you need it the most.

How Long is an H-2B Visa Valid?

An H-2B visa can be granted for up to three years; however, the length of the time granted for each visa coincides with the length of time that the worker is required to complete the temporary work. What often happens is that the H-2B visa can be granted for a set amount of time and then extended in yearly increments until the 3-year mark is reached.

After three years, the H-2B visa is no longer valid, and the worker is required to leave the country for at least three full months before reapplication and re-entry. After the three months are complete, employers may bring the same workers back to their job site by filing for another H-2B visa. There is no set limit on the number of three-year rotations the same individual can apply for an H-2B visa.

Farmer Law knows how precious your time is, which is why we are here to help your operations manage the continual work that has to be done to keep H-2B visas current. While the process of renewal is extremely helpful to keep your workforce consistent and avoid retraining new people, the paperwork can be extensive, so it’s beneficial to hire a legal team who knows their way around immigration law and that can keep you apprised of your legal responsibilities while H-2B visa holders are in your workforce.

Contact Farmer Law Today

Farmer Law is ready to help you facilitate a smooth increase to your workforce during seasons that are difficult to staff. If your business needs include recruiting foreign nationals, hire an experienced legal team that understands the immigration system to help you navigate the process. Our team 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.

What Our Clients Are Saying

- Blake Alewelt , Alewelt Concrete Inc. “ The Farmer Law PC team goes above when it
comes to keeping us compliant and helping us learn more each day. ”

- Cindy Butikofer, Reicks View Farms "Farmer Law has gone above and beyond to help Reicks View Farms recruit workers. They are diligent and timely to our requests which has made a big impact on our labor issues."

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