Non-Immigrant Work Visas for Temporary Non-Agricultural Positions in Landscaping, Hospitality and Construction
The H-2B visa allows U.S. employers or U.S. agents who meet certain regulatory requirements to bring foreign workers to the U.S. to work in temporary nonagricultural positions. To qualify for an H-2B visa, the applicant must hold a passport from one of the countries required by U.S. immigration law. The U.S. employer or agent must file Form I-129, Petition for Nonimmigrant Worker, with the United States Bureau of Citizenship and Immigration Services (USCIS) on a potential worker’s behalf. This classification requires a Labor Certification issued by the Department of Labor (DOL). Labor certification can be a long and complex process, requiring extensive paperwork.
A petitioning employer wanting to hire foreign nationals for an H-2B visa must meet a number of requirements, including:
Demonstrating that there are not sufficient U.S. workers ready, willing, and qualified to work in that job;
Showing that there will be no adverse impact on the wages and working conditions of similarly employed U.S. workers; and
Showing that its needs for H-2B workers are temporary.
As mentioned above, this type of visa is available for work that is temporary in nature. Temporary means the employment must be a position that is a recurring seasonal need, intermittent need, peak-load need, or one-time occurrence. Recurring seasonal need refers to a job that must be related to a particular season by an event or pattern, and it must be of a habitual nature. Intermittent need refers to an employer that has not employed permanent workers for the job and intermittently needs workers for a short period of time. Peak-load need refers to employers that have permanent staff but require temporary workers because of short-term demand, and the temporary workers will not become part of the employer’s permanent staff. One-time occurrence refers to an employer that has not previously employed workers for the job and will not do so again in the future.
According to the Brookings Institute, the top 10 requested occupations for H-2B workers made up almost two-thirds of all H-2B requests in 2012. These occupations included laborer/landscaper, forest worker, amusement park worker, cleaner, groundskeeper, housekeeper, waiter, tree planter, cook, and construction worker. Approximately 15 percent of all H-2B workers requested went to Texas in 2010-2011.
As of 2014, the H-2B program is capped at 66,000 visas per fiscal year, with 33,000 allotted to the first half (October 1 – March 31) and 33,000 allotted to the second half (April 1 – September 30). There are certain exemptions from the cap. The duration of an H-2B visa is tied to the employer’s need for the temporary worker, but the maximum period cannot exceed one year. The employer can extend the duration of the visa for up to a total of three years. However, the process is quite stringent.
H-2B visa holders can bring dependents, including a spouse and unmarried children under the age of 21 years of age, on H-4 status. The dependents can remain in the U.S. for as long as the H-2B holder’s visa remains in legal status. Once the H-2B holder’s visa expires, the dependents must leave the U.S. as well. H-4 dependents are not permitted to work in the U.S., although they can attend school, obtain a driver’s license, and open a U.S. bank account.