EMPLOYER INFORMATION: H-2B VISAS
If you are a U.S. employer seeking temporary or seasonal workers and the local workforce does not meet your needs, U.S. Citizenship and Immigration Services (USCIS) allows you to hire foreign nationals to help you reach your business goals through the H-2B visa program.
H-2B visas are in especially high demand during the months when Los Angeles shops, restaurants, and recreational facilities experience a higher influx of tourists and other visitors. During these peak periods, businesses have more positions than U.S. employees can reasonably fill.
Finding enough qualified workers to keep your business running smoothly can take a great deal of work and specialized knowledge, but with the help of the Immigration Law Office of Los Angeles, PC, you can get through the H-2B visa process as efficiently as possible. Let an experienced immigration lawyer help you fill the available positions with your business. Call (213) 375-4084 to discuss your best options during a free initial evaluation.
What is the H-2B Visa?
H-2B visas are issued to temporary non-agricultural workers arriving in the United States. In contrast to the H-1B visa, which is for highly skilled workers in specialty occupations, the H-2B visa is for temporary non-agricultural positions. These positions may include:
- Landscape Laborer
- Production Workers
- Restaurant Helpers
- Construction workers
- Resort Worker
- Meat, poultry, fish cutters
Who May Qualify for H-2B Classification?
To qualify for nonimmigrant H-2B classification, you as the employer must prove the following:
- There is a shortage of workers in the U.S. who can and are available to carry out the temporary work.
- The hiring of an H-2B immigrant would not negatively impact the wages or conditions of U.S. workers in a similar position.
- The worker’s labor or services are temporary, regardless of whether the job itself is temporary in scope
Your need for foreign workers will be considered short if it fits into one of the following categories.
You have a recurring need traditionally associated with a particular season. You will need to specify the period of time during each year in which you do not need the services or labor. The work will not be considered seasonal if the times when you don’t need the help are unpredictable, subject to change, or a vacation period for your regular employees.
Examples of seasonal positions include fishermen, seafood processors, and seafood plant laborers. Furthermore, jobs in hotels, restaurants at ski resorts, and summer vacation hotspots might qualify, as well as construction laborers if the construction is to take place during non-winter months.
An intermittent need comes up when you don’t have enough full-time staff and need to use occasional workers to keep the business going. Jobs such as painting an interior or exterior of a home or engaging in snow removal labor may be acceptable if you have never employed workers in these positions before.
A peak load need augments your regular workforce during a period of short-term or seasonal demand. This could happen if your company receives an unexpectedly large contract or order and needs temporary workers to fulfill the order.
For a need based on a one-time occurrence, you need to show that you have not employed anyone to do the work in the past and won’t need anyone to do it in the future, or that you have an employment situation that is normally permanent but the need was created by a temporary, short-term event. One common example is a live-in nanny for a private household.
There is a Cap on H-2B Visa Availability
H-2B visas are limited to a certain number of foreign workers per year. The current limit is 66,000, with 33,000 available for those commencing employment between October 1 and March 31 and the remaining 33,000 for those who start their jobs between April 1 and September 30.
Upon reaching the cap, you can only petition for workers who are exempt. This applies to those who:
- Extend their stay once an application for an extension is successfully filed
- Go to work for you after doing work for a different employer
- Change the terms and conditions of their employment
- Are processors, technicians, and supervisors involved in fish roe processing
- Work in Guam or the Commonwealth of Northern Mariana Islands
H-2B visas typically take over seven months to process. If, for example, you wanted your worker to start in April, you should begin the H-2B process no later than September 1 of the year before.
Applying for the H-2B Visa for a Foreign Worker
A Temporary Labor Certification application must be submitted to the U.S. Department of Labor. When you have proven that no U.S. workers are available to meet your needs and hiring foreign temporary labor won’t negatively impact local workers, the Department of Labor will issue a Temporary Labor Certification Once you receive it, you must file it, along with Form I-129 with USCIS. After your petition is approved, the prospective worker must either:
- Apply for an H-2B visa at their nearest US Embassy or Consulate and seek admission at a U.S. port of entry; OR
- If a visa is not required, seek admission as an H-2B worker with U.S. Customs and Border Protection at a port of entry.
Must the Employer Pay Prevailing Wage to the Foreign Worker?
Yes. The DOL (Department of Labor) will determine the prevailing wage, and employers must pay their H1B workers the prevailing wage or more. However, employers are required to pay the minimum wage if it is greater than the prevailing wage. If you have questions about the prevailing wage for a particular position, especially if you’ve never employed anyone in that position before, a Los Angeles immigration lawyer at our firm can help.
How Long is the H-2B Visa Valid?
H-2B status is valid for the period indicated on the temporary labor certification. In qualifying positions, the classification may be extended in one-year increments, but you will need to obtain a new temporary labor certification each time.
H-2B workers are allowed to stay for a maximum of three years. There are situations in which time spent outside the country does not count toward the three-year limit. You want to make sure, however, that your worker qualifies for an exception, so you’ll want to discuss this situation with an immigration lawyer.
Once the worker has left the U.S. for at least three straight months, he or she may apply for readmission in the H-2B category.
Which Nationals May Receive an H-2B Visa?
H-2B work permits may only be issued to individuals from countries that have been designated as eligible by Homeland Security, with the approval of the Department of State. At present, those countries are as follows:
|Bosnia and Herzegovina||Guatemala||Mozambique||South Korea|
|Brunei||Honduras||The Netherlands||St. Vincent and the Grenadines|
|Croatia||Jamaica||Papua New Guinea||Turkey|
|Republic of Cyprus||Japan||Peru||Tuvalu|
|El Salvador||Luxembourg||Saint Lucia|
Questions About the H-2B Visa? Speak With a Los Angeles Immigration Lawyer
It may be beneficial for your business to hire foreign temporary workers, but the process can be challenging. The experienced lawyers at the Immigration Law Office of Los Angeles, PC have helped countless business owners and employers in various industries obtain the qualified workers necessary for a strong business year. To learn more about the H-2 B visa petition process, please call our office at (213) 375-4084 or contact us online.