As the issue of immigration once again gains broad attention, the H2B visa may be one that could benefit both U.S. businesses and foreign national workers seeking employment in the United States.
An H2B visa is intended primarily for the benefit of a U.S. business in need of temporary workers, but which is unable to fill those positions with U.S. workers. The business is the sponsor or petitioner for the visa. The temporary worker is the beneficiary. Therefore, the employer applies for the visa and it is the employer’s burden to prove that it cannot fill the temporary position without approval for H-2B workers.
H-2B Good for American Business
Because the visa primarily benefits the sponsoring business, it has substantial merit under the administration’s goal of building the American economy by building American businesses. In fact, the administration has specifically stated that it believes that the H-2B visa fits into the realm of “America First” and that the visa “does help with American businesses continuing to prosper.”
Once the business has made unsuccessful but reasonable and well-defined efforts to attract U.S. workers, the company may submit a Recruitment Report to the Department of Labor (DOL) and subsequently file an H-2B Temporary Worker Visa with the USCIS. The USCIS will required an I-529 and an I-129H Supplement and an approved Labor Certification from the DOL.
The I-529 may include multiple named and unnamed beneficiaries. The crux of the matter is the number of otherwise unfillable positions the business needs to successfully operate during the temporary period.
The business need not file separate I-529s for individual workers.
H-2B Good for Foreign Nationals
Foreign nationals who can provide proof that meet the minimum job requirements may apply for the H-2B visa. The minimum job requirements will have been supplied to the DOL by the sponsor of the visa in the labor certification application.
The potential worker must apply outside of the America at a U.S. Consulate. In addition to proof of meeting the minimum job requirements, he or she must have a passport that is valid for a minimum of six month beyond the intended period of stay, a DS-160 Nonimmigrant Visa Application from the Department of State, and a full-face, color photograph.
H-2B Is Good for Foreign National Families
The beneficiary’s spouse and children under the age of 21 may also come to the U.S. and remain throughout the validity of the H-2B visa by applying for an H-4 visa.
Families arriving with H-4 visas may not seek legal employment in the U.S.
Spouses and children do not count against the annual H-2B cap which is currently set at 33,000 per each half of the U.S. Governments fiscal year.
Typical H-2B jobs include hospitality workers at hotels, resorts, theme parks, and cruise ships. Other eligible non-agricultural jobs include restaurant, retail, and warehouse help as well as landscapers, golf course, light truck drivers, ski resort employees and construction, maintenance, and even janitorial positions.
H-2B Visa Duration and Availability
The length of stay under an H-2B visa is directly related to the employer’s defined need for temporary workers. Visas are issued for a period of one year or less, but may be extended for two additional one-year periods for a maximum stay of three years.
Beneficiaries must state their intent to leave the U.S. at the end of the visa period.
H-2B visas are available for workers only from eligible countries designated by the DHS. The list is updated and revised annually. The current list is available on the USCIS website. China and Russia are not on the current list. The current list is set for reviewed by January 18, 2018.
Can an H-2B Visa Lead to a Green Card?
Although the H-2B visa is temporary, it is possible for certain individuals to apply for a change of status. Typically, this path is available when an employee wishes to legitimately promote a H-2B employee to a position with additional, permanent, full-time responsibilities. We must be candid by explaining that the path is not particularly easy as the process is complex. It is not the best way for most people to seek permanent residence, but it is possible with the assistance of expert immigration attorneys if the conditions are legitimate.