The H-2B Visa program provides the basis for employers to bring temporary workers to the United States every year to work in seasonal occupations, from ski resort workers in Colorado to amusement park employees in Florida. Approximately 66,000 seasonal workers come to the US every year on H2B visas.
Who is eligible?
The H2B visa is available to employers of foreign workers but not involving work in the agricultural field. This visa is only available for work that is seasonal and temporary in nature, which means:
- The work involves a recurring seasonal need;
- The work involves an intermittent need;
- The employer faces a problem with peak-load requirements; and
- One time occurrence.
As part of the visa process, the employer must also prove that there are no unemployed domestic workers willing or able to do the work. This is established through the state’s employment agency using a labor certification process. This process requires a recruitment campaign, including advertising in a local newspaper for available temporary workers.
The duration of the visa is limited to the employer’s need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years — but subject to close scrutiny from the immigration authorities.
Filing the I-129 Petition
In order to be considered as a nonimmigrant under the above classifications, the prospective employer must file a Petition on Form I-129 with the United States Bureau of Citizenship and Immigration Services (USCIS). Once approved, the employer is sent a notice of approval, Form I-797.
Applying for the Visa
Once the employer’s petition has been granted, a prospective worker outside of the U.S. may apply under the petition for an H-2B visa with the local US consulate.
Each worker’s H-2B visa application includes:
- Form DS-156, Application for Nonimmigrant Visa;
- Form DS-157 (required only for male applicants from 16 and 45 years old);
- A valid passport;
- One passport-style photo; and
- Evidence of ties to the home country (family, property, current occupation, etc.). As with any other nonimmigrant visa, the Consulate will want to see that each applicant has ties to their home country such that he or she will return home after their seasonal employment in the U.S. ends.
If the prospective worker is already in the US and is changing from one nonimmigrant status to another, a visa is not required. However, if the worker leaves the US and wants to re-enter, a visa may be required.
Entry into the US
Applicants should be aware that a visa does not guarantee entry into the United States. The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.
When to file
Petitions should be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment will begin, because the petition processing and visa issuance may not be completed before work is to begin.
Bringing family members
Spouses of H-2B visa holder or an unmarried child under 21 years of age of H-2B visa holder are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2B visa holder. H-4 visa holders are not permitted to work in the US.
Petitioning for multiple workers
It is possible, in some cases, for employers to file blanket petitions (that is, one petition for several individual employees).