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H-2B Visa/Status – Temporary and Seasonal Workers

Basic Requirements:

For seasonal or temporary and non-agricultural skilled and unskilled workers, the H-2B visa/status is available. To obtain this status, the petitioning employer must intend to employ the worker only temporarily and, furthermore, must be capable of demonstrating the temporary need of the applicant’s skills. To be considered a temporary need, one of the following conditions must typically have been satisfied: 1) a seasonal need that is recurring; 2) a need that is intermittent; 3) a peak load need; or 4) a specific need that is based on a one-time occurrence.

Annual Cap for the H-2B Visa/Status:

Only 66,000 new applicants will be approved to receive the H-2B visa/status every fiscal year. Furthermore, the annual cap is equally divided into two groups: 1) 33,000 are distributed in the first half of the United States Citizenship and Immigration Services (USCIS) fiscal year and 2) 33,000 are distributed during the second half of the USCIS fiscal year.

The first half of the USCIS fiscal year begins on the first day of October every year, while the second half of the USCIS fiscal year begins on the first day of April every year. These petitions may be filed up to six months prior to the first day of each half of the USCIS fiscal year. In 2005, all of the available H2-B visas were claimed within the first three months of the fiscal year.

As a further stipulation, the position that is being offered may not be able to be filled by a qualified U.S. worker nor may it adversely affect the working conditions of any U.S. employee who holds a similar position.

Duration of the H-2B Visa/Status:

The initial period of time granted to H-2B visa/status holders to work in the United States is largely determined by the period of time the services are needed for the temporary position. The period of time allotted under this visa/status should coincide with the length necessary to complete the temporary assignment. These positions should generally not extend beyond an initial period of one year, however extensions in increments of one additional year may be granted under special circumstances—though the total period must not exceed three years.

Family Members:

The spouse and children (as long as they are under 21 years old and unmarried) of H-2B primary beneficiaries are eligible for H-4 derivative status. As such, the spouse and children of the primary beneficiary may accompany him or her into the United States. Additionally, anyone with the H-4 derivative status will able to attend schools in the U.S.

Application Process:

There are three general steps in the application process: 1) the company that is petitioning on your behalf must file for your labor certification with the state workforce agency that has required the petitioning company to advertise for that specific position; 2) the company must then file a nonimmigrant petition with the USCIS; 3) the applicant must apply for the H-2B visa/status at a United States Consulate Office in his or her home country.

Fees:

The Austin immigration attorneys at the Law Office of William Jang, PLLC charge the following in attorney’s fees for normal cases filed from within the United States at the USCIS (please take a moment to read this disclaimer), along with the fees charged by the USCIS:

  • $6,000 in attorney’s fees
  • $500 in attorney’s fees per worker
  • The dollar amount it costs to advertise the position (this varies)
  • $460 for the filing fee charged by USCIS to pay for the main petition
  • $370 for the filing fee that is charged by the USCIS for the beneficiary’s application for his or her family + $85 for each family member (when applicable)
  • $150 for the USCIS Fraud Prevention and Detection Fee (during initial petition)
  • $1,440 for the filing fee charged by the USCIS for premium processing (optional fee)
  • The dollar amount for fees charged by the Consular Office (this varies)

Consult with an Austin Immigration Attorney

At the Law Office of William Jang, PLLC, our Austin immigration attorneys are extensively experienced with the representation of individuals applying for the H-2B visa/status. To discuss how one of our Austin immigration attorneys can help you, please call our Austin offices at (512) 323-2333 today.

How do I begin the process?

FAQs About H-2B Visa Status

Our firm works with temporary, seasonal, non-agricultural skilled, and unskilled workers every day to help them get the documentation required to work in the U.S. Following are questions we are frequently asked throughout the process.

What is H-2B?

The H-2B is a temporary foreign worker program, commonly referred to as a guestworker program. The H-2B program allows the employment of foreign workers by U.S.-based employers for temporary periods. These nonimmigrant visas are different from “green cards,” which are immigrant visas that grant permanent residence. With this program, the employer owns the H-2B visa.

What type of temporary work does H2-B apply to?

The H-2B visa is available to companies that employ foreign non-agricultural workers. H-2B is only available for temporary work, such as:

  • Seasonal need
  • Peak-load need
  • Intermittent need

What is a seasonal need?

The H-2B visa can be used to fill a seasonal need for work that is typically associated with a season of the year and is of a recurring nature.

What is a peak-load need?

This means that the employer needs temporary workers to supplement the permanent staff during times of peak demand.

What is an intermittent need?

This means the employer only has an occasional need for temporary workers to carry out the labor, and they do not typically employ permanent, full-time workers to perform the labor.

How may an employer qualify for the H-2B program?

The employer must meet the following requirements:

  • Present the foreign worker with a temporary or seasonal job offer
  • Establish that there is only a temporary need for the type of services or labor to be performed by the foreign worker
  • Establish that there is an absence of American workers who are qualified and available to perform the temporary labor
  • Establish that the employment of H-2B workers will not unfavorably affect the wages of similarly employed U.S. workers
  • The worker must have a foreign residence outside of the U.S. that they have no intention of leaving
  • Submit a temporary labor certification from the United States Department of Labor (DOL) as well as the H-2B petition.

Can I apply for my own H-2B visa as a worker?

Workers may apply for their own H-2B visas, but only if they are interested in working for a particular employer and that employer has received a temporary labor certification. Prospective workers can apply with the U.S. Department of State at a U.S. Embassy or Consulate in a foreign country or seek admission with a U.S. Customs and Border Protection at a port of entry.

How long can I stay in the U.S. as an H-2B worker?

You are allowed to stay in the country just for the period of employment indicated on Form ETA 750, also known as Application for Alien Employment Certification. This period can be no more than 12 months. If extraordinary circumstances exist whereby an employer needs the worker for longer, the employer may apply for an extension.

What are some benefits of the H-2B visa?

Some of the primary benefits of the H-2B visa include:

  • Entering the U.S. for temporary work and enjoying all the employee benefits
  • Bringing dependents with you to live in the U.S. during your stay
  • Traveling freely outside of the U.S. on the visa
  • Changing jobs if you can demonstrate the new job offer and have a new petition approved by the new employer.

Is there a limit on the number of H-2B visas available?

There is a cap on the number of H-2B visas available each year. The current limit is 66,000 workers, with 33,000 of those workers beginning employment in the first half of the fiscal year and the remaining half of the workers beginning employment in the last half of the fiscal year.

What limitations are specific to the H-2B visa?

Limitations include:

  • The employer’s need for foreign temporary workers must not exceed 12 months
  • The authorized time on the visa is counted no matter if the visa holder is in a foreign country or in the U.S.
  • Dependents of the visa holders may not work in the U.S.
  • The burden is on the employer to meet all requirements

How can an immigration attorney help?

The H-2B Visa process generally involves more than just filling out an application and waiting on the results. There are procedural requirements for obtaining benefits. Navigating the process can be time-consuming and challenging. It is highly recommended you seek the help of an experienced immigration attorney to help with the entire H-2B Visa process. Contact the immigration lawyers of the Law Office of William Jang, PLLC at (512) 323-2333 for help today.

Don’t wait until it’s too late!  Contact us today at 512-323-2333