H-2B Temporary Non-Agricultural Worker
The H-2B non-agricultural temporary worker program allows U.S. employers to employ foreign workers to fill “temporary” non-agricultural jobs. The H-2B visas are subject to a quota. Each year, only 66,000 H-2B visas are allowed of which 33,000 visas are for workers who begin employment in the first half of the fiscal year (October 1 to March 31) and the remaining 33,000 visas for workers who begin employment in the second half of the fiscal year (April 1 to September 30).
One benefit of the H-2B visa is that it covers many types of jobs. H-2Bs include coaches, athletes, golf caddies, machining/welding, forestry, truck drivers, waiter/waitresses, landscapers, movers, ski instructors, lifeguards, horse groomers, amusement park ride operators, and maids. Another benefit is that there is an H-4 visa for a spouse and/or children.
We have been asked whether it is possible to obtain a green card from an H-2B. The answer is yes. An H-2B is unlike an H-1B or L-1 visa, which is “dual intent” and allows those who are on H or L to have “immigrant intent.” Although an H-2B is not a “dual intent” visa, just like a TN visa, as long as the beneficiary can prove that he or she does not have immigrant intent at the time of obtaining the H-2B visa, he or she may apply for and be granted an employment-based immigrant visa and green card. PLEASE RETAIN A KNOWLEDGEABLE ATTORNEY FOR THIS PROCESS AS IT IS NOT STRAIGHTFORWARD AND REQUIRES A LEGAL ARGUMENT.
For H-2B visas, the employer must prove that there are not enough U.S. workers who are able, willing, qualified and available to do the temporary work, that employing H-2B workers will not negatively impact the wages and working conditions of other U.S. workers employed in that role, and that the labor is “temporary”.
The immigration definition of “temporary” is defined by INA §8 CFR 214.2(h)(6)(ii). There are four (4) ways to prove “temporary” need, which include:
- One-time occurrence: Either an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker or have not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;
- Seasonal need: The service or labor for which it seeks workers is traditionally tied to a season of the year by an event or pattern and of a recurring nature. This excludes labor that is unpredictable, subject to change, or considered a vacation period for the employer’s permanent employees
- Peakload need: Employer regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation.
- Intermittent need: Employer has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods.
The first thing to look at when considering an H-2B for a foreign national is whether that foreign national’s country is on a specific list designated by the Department of Homeland Security and Department of State. As of January 18, 2017, the H-2B Designated Countries include: Andorra, Argentina, Australia, Austria, Barbados, Belgium, Belize, Brazil, Brunei, Bulgaria, Canada, Chile, Colombia, Costa Rica, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Finland, France, Germany, Greece, Grenada, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kiribati, Latvia, Lichtenstein, Lithuania, Luxembourg, Macedonia, Madagascar, Malta, Mexico, Monaco, Montenegro, Nauru, Netherlands, New Zealand, Nicaragua, Norway, Panama, Papua New Guinea, Peru, Philippines, Poland, Portugal, Romania, Samoa, San Marino, Serbia, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, St. Vincent and the Grenadines, Sweden, Switzerland, Taiwan, Thailand, Timor-Leste, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
Second, consider how long you would like the foreign worker to be employed. Generally, USCIS grants H-2B status for up to the period of time listed on the temporary labor certification, but will not exceed one (1) year. The H-2B status can be extended to a maximum of three (3) years. After three (3) years, the H-2b nonimmigrant must depart the U.S. and remain outside of the U.S. for an “uninterrupted” period of three (3) months before trying to re-enter on an H-2B visa. Time spent in H-1B and L-1 counts towards the three years.
Third, consider the wages that will be paid. Employers are required to pay H-2B employees the prevailing wage (as set by the various state workforce agencies for each occupation and locality) and provide housing (and charge the employees for the same). Lastly, be sure that all H-2B employees are paid as “W2s”, not as 1099s (independent contractors). During the process, the employer must prove a valid “employer-employee” relationship which will be difficult to prove with independent contractors.
On April 29, 2015, as a result of court decisions to protect U.S. workers and ensure they have a “fair shot at finding and applying for jobs that are seeking to hire H-2B workers,” the Departments of Labor and Homeland Security jointly published new regulations governing the H-2B Program. The new rules also specify the prevailing wage methodology for the H-2B program. Below are some of these changes:
- if companies stop employing an H-2B worker, they must notify the Department of Labor;
- all jobs must be at least 35 hours per week;
- workers must be provided with earnings statements, including hours worked and offered and deductions clearly specified along with copies of the job order;
- jobs must be advertised in newspapers and must be included in the new electronic job registry; there is also the possibility of required contact with community-based organizations;
- former employees with U.S. citizenship must be contacted with job opportunities;
- job offers must remain open to U.S. workers until 21 days before the employer’s start date of need;
- employers are prohibited from retaliating against workers exercising their rights under the program;
- companies are now only allowed to use the program for nine months instead of 10;
- employers must pay visa fees and other related charges;
- employers must pay inbound transportation and subsistence costs of workers who complete 50 percent of the job order period and the outbound transportation and subsistence expenses of employees who complete the entire job order period;
- employers must disclose their use of foreign labor recruiters in the solicitation of workers; and
- employers must display a poster describing employee rights and protections.
The changes from the prior set of rules can be found here. Although the Departments of Labor and Homeland Security have added certain rules to the H-2B Program, it is still possible to obtain H-2B visas. We have been contacted.
How We Can Help:
- Our services are all inclusive. We file the prevailing wage determination, place the job order, assist with ad placement, and prepare/file the petition with USCIS.
- We help prepare the “Statement of Need” that describes (in detail) the temporary situation or conditions which require the U.S. employer to hire a foreign national.
- We help address the issue if a foreign national is required to work in more than one (1) location by submitting a detailed itinerary.
- We prepare and file employment-based and marriage-based immigrant visa petitions (with accompanying green card applications) for H-2B workers and their family members.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301.529.1912 or complete the form below. Please be sure to provide a timeline of events along with details of your entire immigration history./strong>