H2B Labor Visa

The H2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

To qualify for H2B labor visa:

The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need;
The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;
The employer must show that the employment of H2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application).

There is a statutory numerical limit, or cap, on the total number aliens who may be provided H2B labor visa during a fiscal year. Once the H2B cap is reached, USCIS may only accept petitions for H2B workers who are exempt from the H2B cap.

H2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H2B program. The list of H2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H2B list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H2A and H2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.

Generally, USCIS may grant H2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H2B classification is three (3) years.

An individual who has held H2B non-immigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H2B non-immigrant.

Any spouse and unmarried children under 21 years of age of an H2B worker may seek admission in H4 non-immigrant classification. Family members in H4 non-immigrant classification may not engage in employment in the United States.

Petitioners of H2B workers must notify USCIS within 2 workdays if an H2B worker is a:

No show: an alien who fails to report to work within 5 work days of the employment start date on the H2B petition
Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer
Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or
Early Completion: an alien who completes the H2B labor or services for which he/she was hired more than 30 days early.

As stated in a notice published by DHS in the federal register on December 19, 2008, petitioners must include the following information in their Employment-Related notification:

The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion)”
The reason for untimely notification and evidence for good cause, if applicable
The USCIS receipt number of the approved H2B petition
The petitioner’s information: 1) Name; 2) Telephone number; 3) Address; 4) Employer identification number (EIN)
The employer’s information (if different from that of the petitioner): 1) Name; 2) Address; 3) Telephone number
The H-2B worker’s information: 1) Full Name; 2) Date of birth; 3) Place of birth; 4) Last known physical address & telephone number

Additionally to assist USCIS with identification of the H2B worker, USCIS requests that, if available, petitioners also submit each H2B worker’s:

Social Security Number, and
Visa Number