H-2 Visa - Temporary Workers

The H-2B visa category is used by U.S. employers to temporarily employ skilled or unskilled foreign nationals in nonagricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable.  The company must plan to employ the foreign nationals for a temporary period and the employer’s need for the skills of the foreign nationals must also be temporary.  In addition, the employer must seek a “labor certification” from the U.S. Department of Labor (DOL) certifying that:
·    The foreign national is not displacing a qualified unemployed U.S. worker in the region of proposed employment
·    The proposed employment does not adversely affect the working conditions of U.S. workers who are similarly employed
There is an annual H-2B quota of 66,000 new visas per year.
The spouse and unmarried dependent children (under 21 years old) may apply for H-4 status.

A.    Duration of stay

           1.  The initial period of stay granted to the alien admitted to the U.S in H-2B status is governed by the period of time that his or her temporary services are needed.

           2.  This period must be reasonable in terms of the duties to be performed and cannot extend beyond an initial period of one year.
           3.  Extensions of stay in increments of one year are possible, but the alien employee cannot be continuously employed in the U.S. for more than three years.
           4.  The DOL has indicated its view that an employer’s temporary need for job skills will usually be for a period of twelve months or less, with more extended needs occurring only in extraordinary circumstances.
          5.  Any extension of the alien’s stay must be made at the company’s request.
          6.  If an extension of stay is needed, the employer must demonstrate that the initial authorization period is insufficient for completion of the duties to be performed and must also show that the unavailability of qualified U.S workers persists.

B.    General Application Process

To obtain H-2B status for alien workers, the petitioner must file a request for a labor certification with the state employment service with jurisdiction over the location of the proposed employment. The request can cover one alien, or a number of aliens filling the same position who will be working in the same location. Along with a nonimmigrant visa petition, the approved labor certification must be filed with the USCIS. Following approval of the petition, the foreign national must take the petition approval notice to a U.S. consulate to apply for the H-2B visa permitting his or her admission to the United States.

Below is a list of the documents required along with your H-2B Petition/Form I-129:

• Evidence of prior recruitment and the results of the recruitment efforts.
• Supporting documentation to justify the temporary seasonal or peak load need, i.e.:

            -    Signed work contracts, letters of intent from clients, and/or monthly invoices from previous calendar years;
            -    Annualized/multi-year work contracts/agreements that are supplemented with signed contracts specifying the actual dates when work will commence and end during each year of service;
            -    Summarized monthly payroll records for one calendar year.    

• Copies of Alien’s qualifications.
• Copies of Experience Letters of Alien.
• Updated Resume of Alien.
• If applying for a change of status or an extension of status, copy of prior I-94 and Form I-797.

NOTE:  For extensions, all steps are repeated.  (However, an alien present in the United States can extend stay without immediately leaving for a visa).

C.    Special Conditions

The alien admitted to the United States in the H-2B category is a temporary worker hired to fill a position for which the employer has a temporary need.  Therefore, it may prove difficult to adjust to permanent resident status while filling the same position for the same employer, because the employer has already affirmed the temporary need for the worker’s skills.

Because of the required affirmation on the employer’s need for the worker’s skills, the USCIS will deny an H-2B petition of extension when the employer has previously filed a labor certification application or an immigrant visa petition for the alien, even if the alien will fill a different job with the same employer.
The reason is that the application or petition shows that the employer has a permanent need for the alien’s skills that is contradictory to the affirmation required for the H-2B category.

Requirements for Obtaining H-2B Status

1.    H-2B status can be sought for a single alien, or a group of aliens, and the identity of the aliens must generally be known in advance, although substitution of aliens can occur in limited circumstances.

• It is common for an employer to seek entry for a number of skilled or unskilled temporary workers at the same time.  These workers must all fill the same position and work in the same location.  The employer need not have chosen specific employees when applying for temporary labor certification from the Department of Labor.
• However, the employer must designate named aliens by the time that it files its H-2B petition with the USCIS after obtaining temporary labor certification.  Exceptions to this rule can be granted by the USCIS in emergency situation or in special situations determined by USCIS Headquarters.  If the employer has not identified all of the alien workers at the time that an H-2B petition is filed, and the USCIS has not granted an exception to its usual rule, a petition can be filed for the known alien workers, and when the other workers are identified subsequent petitions can be filed with copies of the original labor certification filed with the first petition.

2.    Certification must be sought from DOL before the employer can hire an alien or a group of aliens.

The H-2B visa classification requires a temporary labor certification from Department of Labor (DOL) advising USCIS as to whether qualified US workers are available to fill the position and that the employment of the foreign worker will not adversely affect the wages and conditions of US workers employed in similar positions.

• The H-2B category permits employers to employ foreign workers to perform temporary non-agricultural work within the US based upon:

a)    One-time occurrence
b)    Seasonal need
c)    Peak load need; or
d)    Intermittent basis.

Standards for Determining the Temporary Nature of the H-2B Classification

The employer’s need for the alien worker’s skills must be temporary.  The alien worker may not temporarily fill a position for which the employer has an on-going or permanent need.

NOTE:  Part-time employment does not qualify as employment for labor certification under the H-2B classification.

a)  One-time occurrence

      The petitioner must establish that:
·    It has not employed workers to perform the duties in the past and that it will not have a need in the future; or
·    The employment is otherwise permanent, but due to a temporary event of short duration, the need for a temporary worker arose.

b)    Seasonal need

  The petitioner must establish that the temporary employment is tied to a season of the year and is of a recurring nature.  Specific periods of time during which the services are needed must be indicated.

c)    Peak load need

  The petitioner must establish that:

·    It regularly employs permanent workers to perform the job duties and that it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand; and
·    The addition of temporary staff will not become a part of the petitioner’s regular work duties.

d)    Intermittent need

The petitioner must establish that it has not employed permanent employees, but occasionally needs temporary workers to perform the job duties for short periods of time.

3.    The employer’s need for someone with the alien’s skills must be temporary.
The employer must demonstrate that the position is one requiring skills or services for which it has a temporary need, and is not a position that needs to be filled by the employer on an ongoing or permanent basis.
In determining whether an employer has demonstrated temporary need for an H-2B worker, the DOL will consider:

• Whether the job duties, which are the subject of the temporary application, are permanent or temporary in nature.  If the duties are temporary in nature, the employer’s need is also temporary and further analysis is not necessary.  If the duties are permanent in nature, the DOL will consider the other factor below.

• Whether the employer has clearly shown that the need for the H-2B worker’s services or labor is of a short, identified length, limited by an identified event located in time.

Note that job opportunities of 12 months or more are presumed to be permanent in nature.  

In summary, the following situations can support an H-2B petition based on the employer’s temporary needs:

• Training of U.S. employees, when the training program is in place, U.S. workers have already been hired, and the trainer will not engage in actual productive employment.
• Temporary unavailability of absence of a regular employee, e.g. through leave of absence, illness, temporary out-of-office assignment, etc.
• Peak-load situations that are non-recurring.
• Seasonal employment is carefully defined (not overly broad) seasons.
• Childcare limited to early childhood supervision that will end in three years or less, as documented by alternative arrangements for the child at that time, e.g. nursery school, parent will stop working and undertake care, etc.

4.    The employer must intend to employ the alien temporarily.

• The employer must demonstrate that the alien’s term of employment will be temporary.  Specifically the employer must establish that it has not required the skills in question in the recent past, nor will it need those skills in the near future, and that there is a specific time period within which the temporary assignment will be completed, as evidenced by contracts or a description of circumstances that will bring the assignment to a close.

NOTE:  The USCIS will deny an H-2B petition or petition extension when the employer has previously filed a labor certification application or an immigrant visa petition for the alien, even if the alien will fill a different job with the same employer.

5.    The alien can be skilled or unskilled.

• Although the alien may be either skilled or unskilled, he or she must possess the requisite training, education, or skills for the position in question.
• The alien’s qualifications are established by submission of suitable documentation to the USCIS - degrees, school transcripts, affidavits of experience.

6.    The alien must intend to remain in the U.S. temporarily and must continue to maintain a foreign residence.

• The alien’s intent to remain temporarily in the U.S. is judged independently from the employer’s intention to employ the alien temporarily.  
• The alien must maintain a residence abroad, that is, an actual home.  Failure to specify a foreign address to which the alien worker will return upon completion of the U.S. assignment is likely to lead to denial of an H-2B visa at a U.S. consulate.