H-2B Temporary Non-Agricultural Workers

The H-2B program allows foreign non-agricultural workers to work temporary jobs not related to agriculture. With this program, you can have a temporary but extended stay in the United States.

What Is The H-2B Visa?

The H-2B Visa is a non-agricultural work permit in temporary status for foreign-born residents planning to come to the United States.

Unlike H-1B visas for people under “specialty occupations” or highly skilled individuals, H-2B is for people who are considered unskilled and skilled workers.

How Do I Qualify For An H-2B Visa?

You and your employer or petitioner will have various requirements to meet. On your part, you should have the following requirements:

• A valid job offer for temporary or seasonal work coming from a U.S. employer
• Have the right skills, abilities, and background for the job
• Intention to go back to your origin country on the day or before your visa expires

For the employer, they must show the following factors that affect the need of their business for a temporary non-agricultural worker:

1. No other U.S. employees are available, qualified, willing, and able to perform the temporary work
2. H-2B employment will not have a negative effect on the “working conditions” and wage scale of other U.S. employees under the same industry
3. The need for employment is temporary, which may mean an intermittent, peak-load need, a seasonal need, or a one-time occurrence:

• Intermittent: Employment for occasional needs or due to non-employment of full-time staff
• Peak-Load Need: Additional employees are needed due to busy periods
• Seasonal Need: Employment tied to a season
• One-Time Occurrence: An employment for a one-time or short-term period

What’s The Process?

Before processing your application, double-check that you qualify for the program. Otherwise, you may waste time with a lot of paperwork for something that’s not going to happen.

Is There A Cap On H-2B Visas?

Congress’ “cap,” or numerical limit for a fiscal year in issuing the H-2B status to foreign citizens is 66,000 workers per fiscal year. The allocation is divided up into two terms:

• October 1 – March 31 (1st half of the fiscal year): employment allocation of 33,000
• April 1 – September 30 (2nd half of the fiscal year): employment allocation of 33,000

During the year of your application, you may not immediately get a visa because of too many applications. Also, random selection will happen if there is an excess number of applications.

However, there are exemptions to the numerical limit. It’s essential to consult a proficient immigration lawyer and check whether you qualify under the exemption.

What Steps Should I Take?

According to U.S. Citizenship and Immigration Services (USCIS), you should complete the following steps when applying for an H-2B visa.

Step 1: Submit your application to the DOL

You or your employer should submit an application for a temporary certification and receive it from the U.S. DOL (Department of Labor) after an approval.

Step 2: Your employer submits a petition

When the employer receives the temporary labor certification, they must submit a Petition for a Nonimmigrant Worker or Form I-129 to the USCIS. This form has 42 pages, but you don’t need everything for your application.

What’s important is that the employer fills out details regarding the temporary work and other personal details. Before filling out this requirement, you should understand it, because it can affect your application, especially since the program’s standards are high.

Step 3: Submit your application at an U.S. Embassy

Upon approval of Form I-129, this last step requires you to personally submit the visa application from the U.S. Embassy or Consulate in your country.

After issuance of the visa, you can proceed to a U.S. Port of Entry to seek admission to the country with the U.S. Customs and Border Protection.

What Other Documents Do I Need For My H-2B Visa?

Before visiting the U.S. embassy in your country, you may also need to submit the following documents:

• Non-immigrant Visa application form (DS-160)
• Form I-129  approval notice for H-2B visa
• House deed, apartment agreement, or other proof that you’ll return home to your origin country upon expiration of your H-2B visa
• Passport
• Photographs in passport size
• Filing fees

How Much Does It Cost?

For the filing fee of Form I-129, it’s your employer or petitioner’s responsibility. On your part, you will pay a visa application fee when you visit the U.S. consulate. The fees for visa services will vary depending on your country of origin.

How Long Should I Wait For The H-2B Visa?

As mentioned, there may be large numbers of applications for a fiscal year. Generally, the processing of H2-B visa applications can take four to six months. Although, in some cases, the processing time may take longer. This length of time is in line with other U.S. work-based visas’ processing time.

Thus, your petitioner should file the petitions or required documents between two to four months before you start working. This is vital for the application to be processed and considered.

How Long Will My H-2B Visa Last?

Generally, your H-2B Visa depends on how long your petitioner requires your service.

However, if you wish to stay more than the period stated in your visa, you can do so. You can renew your visa for a total of fewer than three years, in increments of one year for each extension. Most importantly, your renewal may or may not be approved by the USCIS, depending on the circumstances. Your employer or petitioner should also extend its Labor Certification for every renewal you make.

When you’ve consumed the three-year extension under the H-2B program, you will now have to leave the United States. If you wish to be readmitted using the same visa, you can do so only if you have left the U.S. for an uninterrupted period of three months.

If your petitioner doesn’t require your service anymore earlier than your visa’s expiration date, you must notify the USCIS. Then they will ask you to leave. However, you can still reapply for a fresh H-2B visa.

Can I Adjust My Status From H-2B Visa To Green Card?

You may be able to adjust your status from your H-2B visa to permanent resident through sponsorship from your employer. Similarly, when you’re applying for an H-2B visa, your employer may offer you a job. The difference is they are offering you a permanent job instead of your current temporary work.

Step 1: PWD, Job Ads, And ETA Form 9089

Obtaining a U.S. green card requires a process involving your employer’s assistance or sponsorship known as PERM or labor certification. Here are steps they need to take:

1. Request Prevailing Wage Determination (PWD): The prevailing wage request includes information like worksite location, job duties, job requirements, and the like. This is a vital document your employer should send to the U.S. DOL. Then, the DOL will issue a PWD stating the common wage of the job you have specified.The PWD will vary from state to state. That’s why your employer should include the correct location of your worksite. Moreover, the PWD is an essential factor in the PERM process because your employer is required by the law to pay for your PWD.
2. Place Ads and Recruiting: In order for the DOL to verify your employer’s good faith recruitment, the latter should place a job posting. Adequate job postings vary, but it may include placing ads in a major newspaper on two different Sundays, posting ads at the worksite location, etc.Your employer will use these ads as proof that no U.S. workers are qualified and willing to apply for the employment opportunity you will receive.
3. File ETA Form 9089: After a waiting period of 30 days has passed from the last ad placement, your employer can now file the PERM application with the DOL. The information in the ETA Form 9089 includes your information, employer’s recruitment process or ad placement, and the details of the job opportunity.

The DOL will decide on your PERM application. Usually, you have to wait for several months to receive a decision. The DOL may audit, deny, or approve the PERM.

The DOL will let your petitioner provide more evidence for the application when the decision is to audit the PERM. Then the DOL will come to a final decision after an audit request.

On your behalf, your employer will file an I-140 petition with the USCIS as the next big step of the process.

Step 2: Form I-140

Next, your employer must submit the I-140 Immigrant Worker Petition. With the I-140, your employer also needs to submit other documents proving their capacity to pay your wage. Thus, they need to submit their corporate income tax return and financial statement.

Step 3: Form I-485 (Adjustment Of Status) For People In The U.S.

The last step involves you. You can file the I-485 by attaching the I-140 approval notice. Depending on the facts and circumstances of your case, you might also be able to file the I-140 and the I-485 concurrently. If they are both approved, you will then be a permanent resident of the U.S.!

Avoid Scams, Work With Professionals

You must not trust easily to avoid being scammed. There are instances when people pose as employers to help you get an H-2B visa. However, if they’re not legit, you may end up paying them and get no visa at all.

Avoid this by contacting our attorneys at Reeves Immigration Law Group. We will help you understand the H-2B Temporary Non-Agricultural Workers program and assess if you qualify for this and help identify if your employer is legit.

Working with the legal experts will help you avoid financial losses that you may risk when you don’t understand what you are applying for. With the right assistance, you can smoothly prepare for your application.