H-2B Visa | Temporary Non-Agricultural Work Visa
The H-2B non-immigrant visa is a temporary non-agricultural work visa that allows foreign workers to be temporarily employed in the United States. The H-2B program is for employers who seek to bring non-agricultural employees from foreign countries to the United States on a temporary basis.
The employer must meet the specific requirements of a temporary business need in order to apply for an H-2B visa on behalf of a worker, initially filing for a Prevailing Wage Determination with U.S. Department of Labor (DOL), followed by the filing of a Temporary Labor Certification with DOL and then Form I-129 Petition for Nonimmigrant Worker with USCIS.
The Limited H-2B Eligible Countries List
There are 83 countries that are on the H-2B eligible countries list. Only the nationals of the countries that are on the H-2B visa list may apply for the visa. This is why planning is essential, as well as working with an experienced employment-based immigration attorney who can walk you through the process and the steps involved.
The H-2B Visa 2021 Annual Cap
For those applying for an H-2B Visa 2021 has been more competitive than previous years. More employers are seeking non-agricultural foreign workers and the cap gets reached quickly. There is an annual cap of 66,000 H-2B visas, with 33,000 visas available the first part of the year starting on April 1st and the second cap of the remainder 33,000 available starting on October 1st.
Who is Eligible for an H-2B Employment-Based Visa?
The H-2B visa is an employment-based visa that requires an employer to establish a temporary business need. The employer must demonstrate one of the following, both to the DOL and USCIS:
The employment situation must have otherwise been permanent, but due to a temporary event now requires the need for a short-term workers. Current workers has not performed the service in the past and workers will not need to perform the services or labor in the future.
The service or labor that the workers are being sought is traditionally tied to a season of the year by an event or pattern, and of a recurring nature:
Subject to change
Considered a vacation period for your permanent employees
Peak Load Need
Employer must show that it regularly employs permanent workers to perform the services or labor at the place of employment; Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation.
An employer must show that it has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods of time.
H-2B jobs are quite diverse and can apply to business trainers, bakers, construction workers, entertainers, chefs, athletes, camp counselors, ski instructors, and many more. If you think your job might qualify for an H-2B visa, please complete the Contact Us form below and we can help you understand your best employment-based immigration options.
Applying for an H-2B Visa
Applying for an H-2B visa can be a daunting process for an employer, coupled with an annual cap. Because of the annual cap, and the steps that must be undergone with the DOL prior to submitting your H-2B application with USCIS, the petition packet that you submit cannot afford to receive a Request for Evidence. That is why it is crucial to work with a knowledge immigration attorney to assist you in going through the necessary steps with the DOL and filing a successful application with USCIS.
How to apply for an H-2B Visa
- Obtain a Prevailing Wage Determination from DOL by electronically filing Form ETA-9141.
- File Form ETA-9142B Temporary Labor Certification with the DOL FLAG system, and upon approval, begin recruitment with their local State Work Force Agency (SWA).
- Once ETA-9142B has been certified by DOL, the employer must complete and file Form I-129 Nonimmigrant Visa Application, together with the necessary supporting documentation and filing fees with USCIS.
- If the applicant is legally present in the U.S., then the employer may ask for a change of status along with the application.
- If the applicant is outside the U.S., then they will need to Consular Processing for an H-2B visa.
- The applicants outside the U.S. will need to undergo an interview with a U.S. Embassy or Consulate abroad before entering the U.S. and beginning to work. If the H-2B applicant is a Canadian citizen, they may process through a U.S. port of entry, with a copy of the petition packet and the I-797 Approval Notice from USCIS.
H-2B visas are issued for a 9-month or a 12-month period, for a total of three (3) years in H-2B status.
The spouses and unmarried children under the age of 21 are eligible for an H-4 nonimmigrant classification. The downside of an H-4 status is that they are not employment-authorized. Even though H-4 spouses and children are not eligible to work in the U.S., they may attend public schools, obtain a driver’s license, and open a bank account.
Chances of Success
The law sets an annual cap on H-2B visas at 66,000, which makes the H-2B visa competitive to obtain. Compared to filing for permanent residence, however, applying for non-immigrant visas—like the H-2B—is faster and easier, making them a first choice for many employers.
The annual cap forces employers to also consider other non-immigrant visa options, often deferring to L-1B (specialized workers), L-1A (managers and executives), E-2 (treaty investor), E-1 (treaty trader), TN (Nationals of Canada and Mexico) or other options to bypass the quota.
Ready to Apply for an H-2B Visa?
At The Batrakova Law Office, our H-2B attorney, Irina Batrakova, is ready to assist you to bring qualified temporary skilled workers to the U.S. Our H-2B visa lawyer is highly qualified and experienced in the complexities of employment-based immigration. Call us when you’re ready to take the next step or complete the Contact Us form below.