The H-2B visa category is intended to allow US employers to hire skilled and unskilled nonagricultural foreign workers on a temporary basis. There are only 66,000 H-2B visas available for every fiscal year (October to September). A returning worker is not counted against the cap if already accounted for during the last three fiscal years.
With the service sector of the US economy growing steadily, many industries under this sector take advantage of the H-2B visa category to be able to hire foreign workers at certain points in their business cycle when more workers are needed. These industries include construction, health care, manufacturing, food processing and hospitality businesses.
Distinctive Features of the H-2B
There are two important aspects to the H-2B category. First, the employment of the foreign worker must be temporary in nature. This means the job itself must be “one-time, peak load, seasonal or intermittent.” An example of temporary jobs in the hospitality industry (which includes hotels, resorts, amusement parks and restaurants) would be resort staff.
The temporary nature of the job is a distinctive feature of the H-2B category. Although temporary working visas like the H-1B, the L-1 and the H-2B itself have limits on the period of employment, the H-1B and L-1 generally pertain to jobs that are permanent. Thus, the job may be filled eventually by a US qualified worker or by the H-1B or L-1 worker if s/he eventually acquires permanent residency.
In contrast, the job for which the H-2B worker is needed must exist for a short period of time, which should generally be no more than 12 months, unless the job is “intermittent.”
The other important aspect of the H-2B category is that there should be no available US qualified worker for the job and that the job will not adversely affect the working conditions of similarly employed US workers.
For this reason, one of the prerequisites to the filing of a petition for H-2B is the labor certification. The request for labor certification is made to the local State Workforce Agency (SWA) on ETA Form 750. This form could be used for more than one job opening and for the same rate of pay. The certification pertains to the employer (not the alien beneficiary/ies) and may not be transferred to another employer.
The employer will undergo a recruitment period to ascertain that there are no qualified US employers for the job and must submit to the SWA a recruitment report containing the names of job applicants and the lawful reasons for not hiring them.
After evaluating the recruitment report, the SWA endorses the labor certification request to the National Processing Center of the Department of Labor (DOL), where a final determination will be made.
The labor certification is issued when the DOL finds that there are no US qualified workers for the job and that similarly situated US workers will not be adversely affected by the hiring of foreign workers. Otherwise, the DOL issues a denial.
Although a labor certification denial does not preclude the filing of the H-2B petition because the decision of the SWA on the labor certification request is merely advisory, the USCIS generally heeds the DOL recommendation.
Petition for H-2B
The petition for the H-2B worker is filed on the I-129 form and submitted to the USCIS Vermont Service Center together with supporting documents such as the DOL labor certification or notice of denial and the filing fee.
The petition may be filed for several beneficiaries if it is for the same job, the same location for the same period of time. The substitution of beneficiaries without USCIS approval is also allowed under certain conditions.
Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com