GUEST WORKFORCE PROGRAM – THE H2B VISA

General Information: The H-2B work visa was created to allow foreign workers to come to the United States temporarily, mainly for non-agricultural jobs, for in which the U.S. workers are in short supply. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each United States Citizenship & Immigration Services(USCIS) fiscal year (October through September). Prospects are good that H-2B visas will remain available in future years.

Eligibility Requirements: Foreign workers, pursuing employment in the US, may qualify for an H-2B visa to accept a temporary or seasonal non-agricultural job from a U.S. employer. Foreign workers may apply if they have the correct background, skills or natural abilities needed by the employer. H-2B visas are targeted at skilled and unskilled workers.

The H-2B nonimmigrant visa permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be:

Ø       One time occurrence

Ø       Recurring seasonal need;

Ø       Intermittent need; and

Ø       Peak-load need.

The employer has the burden of establishing that the need for H-2B workers meet the criteria mentioned above. Documentation might include contracts, lists of projects and timeframes, as well as narrative explanations in order to obtain an H2B certification from the Department of Labor.

The Department of Labor’s role is to administer the labor certification process for the host employer and collaborate with USCIS regarding certification. In order to be issued a Labor Certification, the employer must establish that there are no unemployed U.S. workers willing or able to do the work. A Labor Certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another.

Qualifying Criteria

The requirements are:

Ø       the job and the employer's need must be one time, seasonal, peak load or intermittent;

Ø       the job must be for less than one year; and

Ø       there must be no qualified and willing U.S. workers available for the job.

Ø       a U.S. employer may file an application requesting temporary foreign nonagricultural labor certification

Ø       the employer may be an individual proprietorship, a partnership or a corporation. An association of employers may file as a sole employer, a joint employer with its members, or as an agent of its members

Ø       an authorized agent, whether an individual (e.g., an attorney) or an entity (e.g., an association), may file an application on behalf of an employer. Associations may file master applications on behalf of their members

When to file:

To allow time for processing delays and correction of application errors, the employer should file for H-2B at least 60 days, but not more than 120 days before the proposed employment will begin or the extension of stay is required.

Visa validity

The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years -- but with a very close watch from the immigration authorities.

Petitioning for several workers

It is possible, in some cases, for employers to file blanket petitions (that is, one petition for several individual employees).