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H-2B (Seasonal Workers)

H-2B (Seasonal Workers)

The H-2B temporary visa is designed for workers who are entering the U.S. temporarily to fill jobs that are seasonal, one-time occurrence, peakload or intermittent jobs. The job must be for less than one year and there must be no qualified, willing or able U.S. Citizen or Lawful Permanent Resident workers that can do the job.

When should an employer file for an H-2B visa?

The employer should file for H-2B status at least 60 days, but not more than 120 days before the date of need.

What is the process for obtaining an H-2B visa?

The employer begins the process by obtaining a prevailing wage determination from the National Processing Center of the Department of Labor. Once the wage is determined, the employer must engage in a recruitment process involving both print ads and a posting to the State Job Bank. If the job is subject to a collective bargaining agreement, there are additional recruitment responsibilities. The employer must interview and make an offer of employment to any qualified U.S. Citizen or Lawful Permanent Resident worker and may only obtain H-2B visas for those jobs that remain unfilled after the recruitment process.

Following the recruitment period, the employer will submit an attestation to the DOL attesting that the employer has engaged in a test of the labor market and has subtracted the number of U.S. workers successfully referred from the total number of workers requested. The DOL will review the attestations and certify any remaining job openings.

Once certification is granted by the DOL, the employer can file a visa petition with USCIS. After the petition is approved by USCIS, the foreign employee must apply for a visa at his or her respective U.S. Consulate.

How long is an H-2B visa valid?

H-2B visas are granted in increments of up to one year depending on the anticipated length of the employers need. Extensions of H-2B status are very difficult to obtain and most often denied since the basis of the H-2B visa is the employer’s “temporary” need.

Is the H-2B visa only for unskilled workers?

No. Either skilled or unskilled workers may be employed on an H-2B visa. The visa can be used for entertainers and athletes who do not meet the requirements of the H-1B, O or P visa categories. The H-2B visa is also very useful for the resort, tourism and hospitality industry.

Is there a numerical limitation on the grant of H-2B visas?

Yes. Up to 66,000 H-2Bs are granted each year. This number is divided between the first and second halves of the year. The first 33,000 H-2B visas are 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 of H-2B workers are not subject to the cap and may enter the U.S. in H-4 status.

The numerical limitation is a challenge for employers and employers must be proactive in seeking H-2B visas well in advance of need so as to avoid being prohibited from obtaining workers because of the numerical limitation.

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