KW Immigration Law P.C.

Understanding H-2B Temporary Visas: A Comprehensive Guide

Oct 10, 2024By Kristen Wilson

KW

Lottery balls in tubes

The H-2B visa is a temporary visa for non-agricultural workers. The program allows U.S. employers to hire foreign nationals from particular countries for specific jobs that are seasonal or temporary in nature. There are approximately 66,000 visas allotted per fiscal year under the H-2B visa program. Through a lottery system, employers have the opportunity to apply for these visas generally during two filing windows per year, in January and July. In particular years, supplemental H-2B visas are available for businesses that will face irreparable harm without the necessary staff.  It is vital to consult an experience H-2B lawyer to understand if your company qualifies to file for such workers. 

The most common industries utilizing the H-2B program are construction, landscaping, hotels, restaurants, manufacturing and amusement parks. However, any company can apply for H-2B workers as long as they can demonstrate a tempoary need for a non-agricultural position. 

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Who Can Apply for H-2B Visas?

Employers can apply for H-2B visas for foreign workers from particular countries approved by the Department of Homeland Security. Employers must then prove that there are not enough U.S. workers available for the position and complete a required DOL labor market test.  Foreign workers also need to meet specific requirements set by the U.S. government to be qualified for the H-2B visa. 

H-2B Employer Requirements

Employers need to follow certain steps to hire H-2B workers. Employers must first file a Prevailing Wage Determination with the Department of Labor outlining the duties and requirements for the temporary position. Next, the Employer will post a Job Order with the State Workforce Agency and file an ETA 9142B temporary labor certification application with the U.S. Department of Labor. The DOL will review and advise if any additional information is needed through issuance of a Notice of Deficiency or Notice of Acceptance.  The DOL will then require certain labor market test actions to be taken before issuing a final H-2B certification. 

H-2B Worker Requirements

H-2B workers workers must have nationality from an H-2B eligible country and a job offer from a U.S. employer for a full-time temporary position, of at least 35 hours per week. H-2B workers also need to show that they meet all the requirements for the offered position and intend to return to their home country after the job ends. 

Application Process

The H-2B application process involves several time-sensitive steps and can take at least 6 months to be completed. Since the H-2B program is a lottery-based system, it is important to follow each step carefully to avoid delays and in order to ensure that your application actually yields visas for H-2B workers at the desired time of the year. 

Steps for H-2B Employers

  1. File Prevailing Wage with the DOL outlining the responsibilities and requirements of the position. 
  2. File a Temporary Labor Certification application with the DOL.
  3. Respond to any additional requests made by the DOL including NOD's. 
  4. Complete required DOL Recruitment Steps.
  5. File a recruitment report with the DOL.
  6. Receive full certification from the DOL. 
  7. Submit Form I-129, Petition for a Nonimmigrant Worker with USCIS with premium processing.
  8. Receive approval from U.S. Citizenship and Immigration Services (USCIS).
  9. Apply for H-2B Visa at the US consulate abroad for qualified H-2B workers. 

Steps for H-2B Workers

  1. Receive and review job offer from a U.S. employer.
  2. Apply for the H-2B visa at a U.S. embassy or consulate.
  3. Attend a visa interview and provide necessary documentation including valid passport, fingerprints, job offer letter, and any education or experience documentation.

H-2B Benefits and Compliance

The H-2B visa offers several benefits to both employers and workers alike. Employers can fill positions that are facing workforce shortages but note, the sole reason for pursuing an H-2B visa must be a seasonal and temporary need for workers, and not the lack of worker availability. 

The H-2B visa program has extensive assurances required of the Employer and compliance standards which must be followed at every step of the application process as well as during the period of stay of the workers until the time workers complete their contract and depart the United States. This ensures fair treatment of foreign workers and that US workers are not disadvantaged by the hiring of H-2B workers. The number of H-2B visas issued each year is capped, which can limit availability and require additional planning for H-2B Employers. Please reach out to our office as soon as possible so we can ensure you have the best opportunity for securing additional workers to support your business. 

Call our office at 512-537-1457 or email us at [email protected].