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H-2B Unskilled Labor Visa

H-2B is the non-immigrant visa category for non-agricultural unskilled labors.  The following provided some basic information regarding this visa category.

H-2B Annual Cap

There are 66,000 H-2Bs visa available each year with half reserved for jobs with start dates in the first half of the government fiscal year and the remainder reserved for the second half.  Spouses and children may enter the US in H-4 status. A H-2B work is counted against the cap only once.


Petitioners for H-2B Visa

An H-2B petitioner shall be a US employer, a US agent, or a foreign employer filing through a US agent.  A US agent petitioning on behalf of a foreign employer must be authorized to file the petition, and to accept service of process in the United States on behalf of the employer. 


Criteria for H-2B

Three criteria should be met for a foreign worker to apply of an H-2B visa:

1.      The job and the employer’s need must be one time, seasonal, peak load or intermittent;

2.      The job must be for less than one year; and

3.      There must be no qualified and willing U.S. workers available for the job. 


Timing for filing H-2B Visa

The employer should file for H-2B status at least 60 days, but not more than 120 days before the worker is needed.  Since there are annual caps for the H-2B visa, the employers have two opportunities during each year.  Employers should file in early July and in early January.  Applications should be filed in early July for H-2B visa with starting employment date on and after October 1 and before April 1 of the following year. Similarly applications should be filed in early January for H-2B visa with starting date on and after April 1 and before October 1 of the same year.


Procedures of Getting the H-2B

Both the labor certification process and non-immigrant visa petition are currently under possible revisions in the Department of Labor and USCIS.  But the current procedure is as follows:

1. The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) covering the area of proposed employment.

2. The SWA informs the employer regarding requirements for recruitment, wages, and working conditions offered. The employer will also be required to advertise the position so as to demonstrate a lack of availability of American workers.

3. The employer creates a recruitment report summarizing the results of the recruitment, including names and addresses of applicants, and reasons for rejecting them. The employer must demonstrate that there are no immediately available citizens or permanent resident workers willing to work at the prevailing wage.

4. The SWA will forward the applications to the appropriate National Processing Center (NPC).

5. The NPC certifying officer will review the applications. The officer will issue certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.

6. The certifications/denials are sent to the employer, and used to support a visa petition filed with USCIS.

7. In the event that Department of Labor denies the certification, the petitioner has the opportunity to submit countervailing evidence to rebut the failure of certification by the Department of Labor.  Such evidence shall demonstrate that qualified workers in the United States are not available, and that the terms and conditions of employment are consistent with the nature of the occupation, activity, and industry in the United States.

8. The Labor Certification Determination, the countervailing evidence if applicable and the form I-129 are submitted to the USCIS.

9. The foreign prospective employee shall apply for a visa at the U.S. Consulate. 


Validity of the H-2B Visa

The length of stay on an H-2B visa is one year and can be shorter if the employment period is shorter.  But since H-2B visa in temporary in nature, USCIS may deny the request for extension.


Records Employers need to Keep

If the worker is self-employed:

1.      A contract between the employer and the worker specifying the wages and terms of employment

2.      A complete itinerary of the planned employment

If numerous employers are involved:

1.      The dates of the proposed employment

2.      The name and address of the employers

3.      List of locations where the work will be performed


Obligation of the H-2B Employers  

The employer is required to pay the prevailing wage and if an employee is terminated early, the employer must pay return transportation costs home.

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