Under current U.S. immigration law qualifying U.S. employers can petition to bring foreign workers to the United States in order to fill a temporary need in nonagricultural positions on H-2B visas. Such positions are classified as a one-time occurrence, seasonal need, peakload need, or an intermittent need. *See below for an explanation of the H-2B categories.
Some positions that commonly fall under the temporary non-agricultural H-2B visa classification are: retail sales positions, amusement park workers, seasonal workers in the food service industry, camp staff, winter resort staff, and positions in tourism. There are also many positions that qualify for H-2B visas at companies who regularly employ permanent workers but who need a temporary supplement to their staff to meet a seasonal or short-term demand. To qualify as an H-2B temporary non-agricultural worker the foreign worker must be a citizen of one of the designated countries. ** See below for the complete list of the designated countries
In order to participate in the H-2B visa program employers must begin the process by obtaining certification from the U.S. Department of Labor (“DOL”) verifying that all necessary labor conditions have been met and that there are no willing, able, and qualified U.S. workers to fill the need. After receiving certification from the DOL, the employer then files a petition on Form I-129 with U.S. Citizenship and Immigration Services (“USCIS”). Finally, after USCIS approves the petition, the foreign worker will obtain their H-2B visa at a U.S. Embassy, U.S. Consulate, or at the border. The H-2B visa category is highly regulated by USCIS and petitioners must comply with strict reporting requirements.
An H-2B visa is generally approved for the time period of the temporary need and may be extended in 1 year increments with a maximum period of stay of 3 years. The spouse and any unmarried children of the H-2B worker are able to obtain H-4 status for the duration of the workers employment in the US.
H-2B Cap – There is a numerical limit on the number of H-2B visas issues each year. Once the limit is reached, USCIS will not accept applications until the next fiscal year.
If you are an employer with a temporary need in a non-agricultural related position that you are not able to fill with a U.S. worker, the H-2B visa for Temporary Non-Agricultural Workers may help you fill the need. Contact us today so that we can assist you with the H-2B petition process.
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*The qualifying temporary H-2B employment needs are:
- One-time occurrence – In order for a position to qualify as one-time occurrence, the employer must show that is has:
- 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; OR
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- Seasonal need – A petitioner claiming a seasonal need must show that 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.
- Peakload need – A petitioner claiming a peakload need must show that it:
- 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 – A petitioner claiming an intermittent need must show that it:
- 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 qualifying H-2B countries are below:
|Costa Rica||Iceland||The Netherlands||Solomon Islands||0|
|Dominican Republic||Israel||New Zealand||South Korea||0|
|El Salvador||Japan||Papua New Guinea||Switzerland||0|