H-2B

The H-2B visa is a nonimmigrant visa for workers coming to the United States for temporary or seasonal employment other than agricultural work. To determine whether a job qualifies as temporary, the U.S. government looks not to the nature of the job duties, but to the nature of the employer’s need. The need for the labor must be a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need. The H-2B visa traditionally has been used for construction workers, hotel employees, landscapers, fishermen, forestry workers, snow ski instructors and minor-league athletes.

Employers who wish to hire these workers must demonstrate, through a temporary labor certification filed with the U.S. Department of Labor (DOL), that no U.S. workers were available for the position, and that employment of the workers will not adversely affect the wage rate and working conditions of similarly employed workers in the United States. After the labor certification is approved by the Department of Labor, a separate petition for the worker must be approved by USCIS.

An employer is responsible for the return transportation costs for any employee terminated prior to the end of the approved period of employment.

How to Apply The first step is to prepare and file a temporary labor certification with the U.S. Department of Labor. Preparation involves advertising the position to U.S. workers using multiple advertising venues, and compiling a recruitment report that explains lawful job-related reasons for not hiring any U.S. workers who applied. The DOL may take several months to approve the labor certification. The second step is to file the H-2B petition with USCIS. This can be done with a request for premium processing, a service through which USCIS guarantees a decision within 15 days if a supplemental $1,000 fee is paid. Regular processing usually takes several months but depends on the current processing times for the particular USCIS Service Center.

Duration
H-2B temporary workers are admitted for the time period provided on the labor certification, but not for more than one year. For any work lasting more than a year, a new labor certification is needed and an extension can be obtained for not more than one year, or a maximum of three years in extraordinary circumstances.

Dependents
Spouses and unmarried children under 21 years of age may apply separately for H-4 status. Dependents in H-4 status are not authorized to work in the United States.

Immigration Lawyers Blog - H-2B
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