The H-2B Nonimmigrant visa category is the lifeblood of many business allowing them to meet their staffing needs and provide services. While it is critical for many businesses not all can take advantage of this category. Theoretically, any occupation can apply for the H-2B visa. There is no limit on the number of employees that can be petitioned. The scope of H-2B, limits this category to positions that are temporary in time. The U.S. Department of Labor and INS have defined temporary positions as those that are either seasonal, or for peak load activity, or a one-time occurrence activity.
The H-2B process has two components: a Department of Labor component and an INS component. Both require describing and justifying the temporary nature of the position. Employers are required to file a labor certification with the DOL which includes a statement by the employer as to why the position is a temporary one. There are generally no restrictions on which occupations may apply for an H-2B. Proving the temporary nature of the position is the most critical element. The second most important element for the DOL is that U.S. workers are given an opportunity to apply for the position in what is known as the labor certification process.
Occupations such as landscapers, loggers, and hotel staff are typically the largest recipients of H-2B certification. This is because employers in these industries can demonstrate that the workers are need on a seasonal basis, or for a peak load activity.
The DOL has provided some hypothetical guidance on what constitutes a temporary position. A hotel in a summer resort area is a good example. If the hotel can demonstrate that most of its business is conducted during the summer months, and not evenly throughout the year, it will it will be able to certify H-2B workers. This is an example of a seasonal workforce. Another example includes groundskeepers for a golf course in the Northeast. The golf course can demonstrate that it only needs people to mow the lawns, rake leaves, and trim hedges on a seasonal basis, since the course is closed during the winter months.
An example of a one-time need position is to fill a spot vacated by someone on maternity leave. One-time need is exactly that. It cannot be petitioned for a second time. An extension cannot be requested for a position that was once before listed as a one-time need. Nor can it be petitioned for the following year. Another example is a manufacturer of widgets gets a very large order to produce super widgets, something it is not regularly geared to do. The manufacturer needs to employ super widget engineers to tool its factory in order to fill this one order. It will not need these engineers beyond the time needed to process the order.
Peak-load activity is the last of the temporary categories. This is described as activity that requires workers above and beyond the normal course of business for a short duration. An auto-tooling plant that gets a rush on orders for cars is a good example. Another is hospitals in a ski area during the winter season. The hospital might be able to show that its emergency room visits increase significantly during the ski season requiring additional staff in its billing department to handle that load.
When the employer receives the Labor Certification from the Department of Labor, it may then file with INS. The labor certification and another letter explaining the temporary nature and need for the position is also submitted. The labor certification is only advisory and INS may chose to accept it or not. This can be good for some employers who were denied a labor certification by the Department of Labor. In this instance, the employer has a chance to convince INS that the Department of Labor was wrong in its decision. The INS is required to quickly adjudicate these cases so that employers can bring their staff on board for a temporary time.
Employers can request for extensions of an H-2B. This can be quite difficult to obtain because by requesting an extension of time, the employer may be construes as stating the position is no longer temporary in nature. Usually, especially in seasonal occupations, the foreign worker returns home for a few months and waits for the next season to begin and start the process anew.
