1. General Requirements
The H-2B visa category is used by U.S. companies temporarily to employ skilled or unskilled foreign nationals in non-agricultural positions for which the employer has a temporary need and for which qualified U.S. workers are unavailable. The company must intend to employ the foreign nationals for a temporary period and the employer’s need for the skills possessed by the foreign nationals must also be temporary. In addition, the employer must seek a “labor certification” from the U.S. Department of Labor (DOL) certifying that:
- The foreign national is not displacing a qualified unemployed U.S. worker in the region of proposed employment
- The proposed employment does not adversely affect the working conditions of U.S.
The temporariness of the employer’s need for the alien’s skills, and not just the temporariness of the employer’s need for the particular alien, is the crucial element of the H-2B category. This element differentiates it from the H-1 category, in which the employer’s need for someone with the alien’s skills can be permanent, even though the employer intends to hire the alien temporarily.
Later in the year, however, Congress enacted legislation that effectively increases the number of H-2B workers available to U.S. employers by exempting from the cap workers who have worked in the U.S. under the H-2B visa program in any one of the past three fiscal years and who are returning to the United States to take up temporary employment in FY 2005 or FY 2006. The USCIS announced in May 2005 that, as required under the new law, the agency will begin to accept additional petitions for H-2B workers as of May 25, 2005. Further information regarding these developments is included.
- Laborer, Landscape-14,236
- Forest Worker-9699
- Tree Planter-6793
- Cleaner, Housekeeping-5324
- Crabmeat Processor-3250
- Stable Attendant-2704
- Kitchen Helper-2358
- Sports Instructor-1899
- Groundskeeper, Industrial Commercial-1711
- Lawn Service Worker-1418
- Dining Room Attendant-988
- Fast Foods Worker-987
- Construction Worker II-979
- Line Erector-857
- Amusement Park Worker-565
- Material Handler-562
- Cannery Worker-542
- Horticultural Worker II-530
- Shellfish Shucker-515
- Knock Up Assembler-500
No other occupation had more than 500 positions certified. These occupational titles come from the DOL’s Dictionary of Occupational Titles (DOT). These occupations accounted for 75% of the H-2B certifications issued. These statistics show that the most commonly certified positions in the H-2B category involve various types of outdoor work or work at resorts for which employers often have a seasonal need.
2. Duration of Stay:
The initial period of stay granted to the alien admitted to the U.S. in H-2B status is governed by the period of time that his or her temporary services are needed. This period must be reasonable in terms of the duties to be performed and cannot extend beyond an initial period of one year. Extensions of stay in increments of one year are possible, but the alien employee cannot be continuously employed in the U.S. for more than three years. The DOL has indicated its view that an employer’s temporary need for job skills will usually be for a period of 12 months or less, with more extended needs occurring only in extraordinary circumstances. Although this view is not controlling on whether a full three years will eventually be granted to an H-2B worker, it must be taken into account in preparing an H-2B case.
3. Application Process
- As the first step in obtaining H-2B status for alien workers, the U.S. employer must file a request for a labor certification with the state employment service office with jurisdiction over the location of the proposed employment.
- The request can cover one alien, or a number of aliens filling the same position who will be working in the same location.
- The approved labor certification, or a DOL notice denying certification, must be filed as a part of the second step-a nonimmigrant visa petition filed by the employer with the USCIS.
- The petition may be filed for multiple aliens when the labor certification has been issued for multiple aliens, and the beneficiaries will be performing the same service for the same period of time and in the same location.
- Under a rule finalized in December 1995, however, aliens are not required to seek their visas at the same consulate in order to be included in the same petition.
- Following approval of the petition, the third and final step occurs-the foreign national or nationals must take the petition approval notice to a U.S. consulate to apply for H-2B visas permitting their admission to the United States.
4. Special Conditions
The alien admitted to the United States in the H-2B category is a temporary worker hired to fill a position for which the employer has a temporary need. Therefore, it may prove difficult to adjust to permanent resident status while filling the same position for the same employer, because the employer has already affirmed the temporary need for the worker’s skills.
- Rules issued in April 1997 codify existing policy governing the circumstances under which a foreign employer may file H-2B petitions.
- The rules state that a foreign employer may file a petition only through a United States agent.
- A “foreign employer” includes any employer who is not amenable to service of process in the United States.
- As a result, a foreign employer may not directly petition for an H-2B nonimmigrant but must use the services of a United States agent to file the petition.
- The agent must be authorized to the petition on behalf of the foreign employer and to accept service of process in the United States on behalf of the employer in any proceeding brought by the DHS against the foreign employer based on the unlawful employment of aliens or a failure to verify the status of its employees.
- The rules also clarify the circumstances under which U.S. agents may file H-2B petitions.
The USCIS rules permit “United States agents” to file petitions in cases involving workers who are traditionally self-employed or who use agents to arrange short-term employment on their behalf with numerous employers, and in cases in which a foreign employer authorizes the agent to act in its behalf. Note the following with regard to each of these circumstances:
- Cases Involving Self-Employment
In this case, the agent performs the function of an employer. A contract between the agent and the alien is required specifying the wage offered and the terms and conditions of employment. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.
- Cases Involving “Numerous Employers”
In this case, the agent acts as a representative of both the employers and the beneficiary. The agent must submit a complete itinerary of services or engagements. The itinerary must specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed. In questionable cases, a contract between the employers and the beneficiary may be required.
- Cases Involving Foreign Employers
In this case, the agent acts as the business representative of the foreign employer. Some evidence of the agent’s authority to act on behalf of the foreign employer must be presented, although a formal agency agreement with the foreign employer is not required. A letter from the foreign employer stating that the agent is authorized to file the petition and to accept service of process in any proceeding under the employer sanctions provisions of the immigration statute should be sufficient. The contract between the foreign employer and the beneficiary should also be submitted. If the beneficiary will provide services in more than one location in the United States.
If you have any questions, our office in Wani & Associates will be happy to help you explain the J1 Visa program requirements. Please feel free to Contact Now: 1-866-755-9264 .For more detailed information then come our website: http://www.wanilaw.com/