Non-Immigrant Employment Visas Law

H-2B Visas

When there is a labor shortage in the U.S., many employers have to turn to foreign workers to fill jobs. The U.S. government created an H-2B visa to allow temporary workers to come to the country for a limited period of time to work for employers. The H-2B is a nonimmigrant visa that only allows for temporary legal status to work and stay in the U.S.

There are limited H-2B visas available, so it is important to properly prepare any documents for the petition. If you are an employer looking for temporary workers or a worker trying to get a temporary job in the U.S., contact an immigration law attorney for legal advice.

What Is an H-2B Visa?

The H-2B visa is for temporary, nonagricultural jobs. According to theU.S. Citizenship and Immigration Services (USCIS), U.S. employers or agents have to establish that:

  • There are not enough workers in the U.S. who are willing, able, qualified, and available to do the temporary work
  • Using H-2B workers will not negatively affect the working conditions and wages of similar U.S. workers
  • The employment need is only temporary

These needs can be seasonal, a one-time occurrence, for peak load need, or an intermittent need. For example, working at ski resorts in the U.S. is a seasonal need. A one-time occurrence may involve emergency labor needs during a natural disaster or pandemic.

Employers cannot use temporary workers to hire cheap labor or undercut U.S. jobs. Under U.S. Department of Labor (DOL) regulations, employers must pay the higher of the prevailing wage or applicable minimum wage. H-2B employers who violate wage-and-hour protections can face civil penalties.

Who Can Work Under an H-2B Visa?

Workers who come to the U.S. for temporary labor can get work in a number of industries. According to the Department of Labor, the highest H-2B industries in 2021 included:

  • Food services
  • Construction
  • Hotels
  • Janitorial services
  • Landscaping services

Workers in the H-2B program can come from a number of countries, with more than 80 qualifying countries around the world. The majority of foreign nationals come from neighboring Mexico, with many others from the Philippines and Jamaica.

In some years, the USCIS allocates additional visas for certain nationals. For example, in 2023, there are additional H-2B petitions accepted for workers from El Salvador, Guatemala, Honduras, and Haiti.

Is There a Limit to H-2B Visas?

There is a limit to the number of petitions for H-2B workers. In fiscal year 2023, the H-2B cap was 33,000 workers for the first half of the year and another 33,000 for the second half.

Once the cap is reached, USCIS will only review petitions from exempt labor workers. Exempt workers can include fish roe workers and certain work performed in Guam and the Northern Mariana Islands.

How Long Can I Stay in the U.S. on an H-2B Visa?

The period of stay for H-2B visa holders is based on the employer’s temporary labor certification. Once the time period is up, the temporary workers must return to their home countries. However, the H-2Bworker visa can be extended for up to 1 year, with a maximum period of H-2B classification of 3 years.

Can You Bring My Family to the U.S. With an H-2B Visa?

For some workers, they can bring their spouse and unmarried children under the age of 21 on an H-4 nonimmigrant visa. However, family members without their own work authorization cannot work.

Can You Get a Green Card After an H2-B Visa?

The H-2B nonimmigrant visa does not provide a path to a green card. However, if a temporary nonagricultural worker wants to become a lawful permanent resident (LPR), there may be other ways to get a green card. Eligibility for a green card can be based on family or employment.

For example, if you have a close family member who becomes an LPR or U.S. citizen, they may be able to sponsor you for residency. If you are still in the U.S., you can file for an adjustment of status. If you are outside the country, you have to go through the U.S. embassy or consulate in your home country.

What Is the H-2B Visa Application Process?

Employers are first supposed to get a prevailing wage determination from the DOL. They then must submit jobs to their state workforce agency, along with published ads for the job opportunities. Before applying for a visa, the U.S. employer or agent has to submit a temporary labor certification application to the DOL.

After getting the foreign labor certification, the employer submits Form I-129, Petition for Nonimmigrant Worker. Foreign workers can then apply for the H-2B visa for admission to the U.S. In most cases, the visa process takes from 2 to 4 months for a final determination but could take longer.

How Can I Get Help With an H-2B Visa?

The H-2Bvisa program can be confusing for employers unfamiliar with the visa process. Delays or simple errors can mean your petition is denied. Workers can also have problems with getting a visa if there are errors in their visa application. If you have questions about the H-2Bvisa program, talk to an experienced immigration attorney for legal advice.

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