The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers. The annual cap on this type of visa is 66,000. Recently, this visa has become quite popular in the hospitality industry.
The length of the stay on an H-2B visa is limited by the duration of the employer's temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers. The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories.
US employers are allowed to petition for temporary H-2B workers. A US agent may also file petitions for self-employed aliens or where they are multiple employers, and cases involving foreign employers.
When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment. The agent must also provide a complete itinerary of the planned employment. When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent's authority to act on behalf of the employer. In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under US immigration law.
The most significant restriction on the H-2B category is the requirement that the need for the foreign worker is temporary. The Department of Labor recognizes several situations in which there is a temporary need for workers.
Both the job itself and the petitioning employer's need for the specific alien must be temporary. In the language of the regulation, an H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers. Temporary services or labor under the H-2B classification refers to any job in which the petitioner’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary.
1. Recurring seasonal need
2. Intermittent need
3. Peak-load need
4. Need based on a one-time occurrence
It is difficult to fufil the H-2b requirements since the employer must promise to employ the worker for a limited period of time, and the employer must verify that its need for the worker is temporary. Prior to filing an I-129 petition for an H-2B worker, a process similar to that required for permanent labor certification (for Green Cards) must be completed.
