H-2B Visa
The H-2B classification is for temporary nonagricultural workers who come temporarily to perform services or labor. This classification is very (not exclusively) used by businesses related to the tourism industry, including hotels, resorts, amusement parks, restaurants, etc. to bring foreign national workers when there is no enough availability of U.S. workers in the area of employment.
According to the regulations, 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(s) is temporary, whether or not the underlying job can be described as permanent or temporary.
The H-2B classification has an annual cap. The cap is 66,000 H-2B visas per fiscal year. 33,000 H-2B visas are allocated in the first half of the fiscal year. 33,000 H-2B visas are allocated in the second half of the fiscal year.
The maximum period of stay in H-2B status is 3 years.
The H-2B workers may bring their spouses and children. These derivative beneficiaries may obtain H-4 visas.
The petitioner's need for the services or labor shall be a one-time occurrence, a seasonal need, a peakload need, or an intermittent need:
- One-time occurrence. The petitioner must establish that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- Seasonal need. The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.
- Peakload need. The petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.
- Intermittent need. The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Prior to filing a petition with the director to classify an alien as an H-2B worker, the petitioner shall apply for a temporary labor certification with the Secretary of Labor for the state where the work will be performed.
The labor certification shall be advice to the director on whether or not United States workers capable of performing the temporary services or labor are available and whether or not the alien's employment will adversely affect the wages and working conditions of similarly employed United States workers.
As was mentioned before, the certification of the Secretary of Labor will only advice the director of the U.S. Citizenship and Immigration Services (USCIS). That means that regardless the position is certified or not, the employer may file the petition to the immigration authorities.
If USCIS approves the petition, the beneficiary may apply for an H-2B visa abroad or change the current nonimmigrant status in the United States.
At the Law Offices of Hugo C. Castro we may help your business to bring foreign workers with H-2B visas to supply your workers needs.
We have the knowledge, experience, resources and capabilities to provide you with a strong legal representation.