Temporary (Nonimmigrant) Visas

H-2B Skilled/Unskilled Worker

This category includes temporary workers coming to the US to perform services or labor other than for agricultural purposes.

Generally

The H-2B category is used by US companies to temporarily employ skilled or unskilled foreign workers for non-agricultural positions. The employer must have a temporary need for these workers and qualified US workers must be unavailable.
The employer must obtain a labor certificate from the Department of Labor, showing that
 1) the foreign national is not displacing a qualified available US worker, in the      region of the  
     proposed employment AND
2) that the proposed employment does not adversely affect the working      conditions of US 
     workers who are similarly employed

Authorized Period of Stay

The original amount of time that an alien is granted an H-2B visa depends on the amount of time that the services of the alien are expected to be required. Extensions of time may be approved in one-year increments; however, the alien worker may not be employed in the US for more than three years of continuous employment.

The alien who has spent three years in the United States on an H-2B visa, cannot thereafter apply for an extension of stay, change of status, or cannot be readmitted in either the H or the L categories, unless the alien resides and is physically present outside the US for the six months immediately preceding the return to the US.

Since the H-2B visa is, by definition, of a temporary nature, the INS will deny any H-2B petition or petition extension, where a labor certification application or an immigrant visa petition has already been filed for the alien, even if the alien will fill a different job, since the INS views this as the employer having more than a temporary need for the skills of the alien.

Application Process

The prospective employer must file a request for a labor certification with the state employment service office with jurisdiction over the geographic area of the proposed employment. This request for labor certification can be made on behalf of one or more aliens, so long as they will be working in the same position at the same location. Then, a nonimmigrant visa petition must be filed by the employer with the INS. All the aliens included in the labor certification may apply under the same nonimmigrant visa petition.

Once the petition is approved, the aliens must take the approved visa petition to a US Consulate in order to apply for the H-2B visas to be admitted to the United States.

A foreign employer may file an H-2B petition only through a US agent. A foreign employer is one that is not subject to service of process in the US. The US agent must be authorized to file the petition on behalf of the foreign employer, and must be able to accept service of process in the US for the foreign employer. 

US agents are permitted to file H-2B petitions for those who are traditionally self-employed or who generally use agents to arrange short-term employment on their behalf with numerous employers or in cases in which a foreign employer authorizes an agent to act on its behalf.

In this case, the agent functions as an employer, and a contract is signed between the alien and the agent, specifying wages, terms, conditions, and an itinerary for the time period that the alien is to be employed.

The agent here acts as a representative for both the employer and the alien. An itinerary in this case must include the dates, names and addresses of the employers and planned services to be performed. A contract between the employers and the alien may be required where the information isn’t provided completely concerning the proposed services.

A foreign employer may file an H-2B petition only through a US agent. A foreign employer is one that is not subject to service of process in the US. The US agent must be authorized to file the petition on behalf of the foreign employer, and must be able to accept service of process in the US for the foreign employer. US agents are permitted to file H-2B petitions for those who are traditionally self-employed or who generally use agents to arrange short-term employment on their behalf with numerous employers or in cases in which a foreign employer authorizes an agent to act on its behalf.

(1) An application for H-2B status may be made for either one person or a group of aliens.
     The names of such persons should be known in advance, but in limited circumstances, a 
     substitution of aliens is permitted. The employer may apply for multiple aliens when the 
     workers will all fill the same position, for the same period of time and work in the same 
     location. This is permissible even if the workers do not enter the United States at the same 
     port of entry and do not share the same US Consulate. The employer can substitute others 
     for the workers named in the petition, after the petition is approved. This occurs by  
     informing either the consulate where the visa will be sought, or the port of entry of the 
     identities of the substitutions. 

2) The US employer must file an application with the Department of Labor before they may 
     petition for H-2B workers. The DOL must certify that
:a) qualified US workers are not available for this position in the region of the alien’s proposed 
      employment AND
b) the employment of the alien will not adversely affect the wages or working 
      conditions of US workers that are similarly employed

3) The employer’s need for someone with the alien’s skills must be temporary in nature, and 
     not a position that needs to be filled by the employer on an ongoing or permanent basis.  
     The employer must show that the position is of a fixed, short duration
.
4) It must also be specifically stated not only that the position is temporary, but that 
     the employer is intending to employ the employee on a temporary basis. The employer must 
     show that the position will be completed in a particular amount of time, and that the 
     employer does not have a need for such skills or services in the near future.

5) The alien must have the required training, experience or skills for the position offered, and 
     evidence of such qualifications must be submitted to the INS. So long as the alien qualifies 
     for the position, the alien may be skilled or unskilled.
6) Since the position offered must be temporary in nature, the alien must specify a 
    foreign address to which the alien will be returning, and have the intention of staying 
    in the US temporarily.

7) The petition must be within the allotted number of 66,000 annual admissions per fiscal year 
    (starting October 1). If the limit has already been reached, the INS will return the 
    application to the employer, informing them that the annual limit on admissions has been 
   reached and that the employer should reapply the following October.

8) The employer is required to pay the reasonable costs for the alien to return to their foreign 
    residence, if the alien is dismissed prior to the end of the authorized stay of the employee. 
    The employer must affirm in writing that “As an authorized official of the employer, I certify 
    that the employer will be liable for the reasonable costs of return transportation of the alien 
    abroad, if the alien is dismissed from employment by the employer before the end of the 
    period of authorized stay.” The INS, however, will not be an enforcement agency for this 
    obligation. The INS has stated that if a number of complaints were received by the INS 
    about a certain employer, they would conduct an investigation into the matter.

The prospective employer must file a request for a labor certification with the state employment service office with jurisdiction over the geographic area of the proposed employment. This request for labor certification can be made on behalf of one or more aliens, so long as they will be working in the same position at the same location.
Then, a nonimmigrant visa petition must be filed by the employer with the INS. All the aliens included in the labor certification may apply under the same nonimmigrant visa petition.

Once the petition is approved, the aliens must take the approved visa petition to a US Consulate in order to apply for the H-2B visas to be admitted to the United States.

1) The employer must contact the local office of the state employment service, in order to 
     determine what are the specific requirements for the labor certification for the position.
2) The labor certification request is made on Form ETA 750, Part A, including supporting documents, a support letter and  
     submitted in duplicate (with original signatures on both copies)
*  The supporting documentation should include evidence of the prior recruitment     efforts and the result of such efforts.
*  The support letter should include information regarding the nature of the business, the duties to be performed by the alien, the
    present need for the alien’s skills, the temporariness of the     need for such skills, the scarcity of available US workers for
    that position, prior recruitment efforts, the alien’s qualifications for the position, and the terms of the intended employment, 
    including information concerning the temporary nature of the employment.
3) The request is filed with the local office of the state employment security agency (SESA) of  the area of intended employment.
4) The state accepts the request for processing and supervises the recruitment process for qualified, available US workers.
5) The request should be filed 120 days before the workers are needed.
6) Once the state office finishes processing, the request is then forwarded to the region’s office for the Department of Labor, where the labor certification is either accepted or denied. 

H-2B workers are admitted to the US for the period of stay approved by the INS in the H-2B, plus ten days before and ten days after the approved period, with the maximum period of stay being one year. Extensions of stay in amounts of one year may be granted, but are difficult to obtain because of the temporariness requirement. A new labor certification is required for each extension. The alien will not be granted an extension of stay that would result in their continuous presence in the US for more than three years. 
Once the alien has been in the US for the three-year limit on their stay, they must be continuously physically present outside the US for six months before the employee can have another petition approved in either the H or the L category.

Extensions of stay involve two steps:

1) the issuance of a new labor certification and
2) approval of an extension of stay application by the INS

Application Procedures for Extension of Stay:

1) Form I-129 and H Supplement
2) Final DOL determination granting labor certification (or evidence in rebuttal to 
     a denial of this certification)
3) Copy of the approval notice of the initial petition
4) Company letter in support of the extension request
5) Copy of Form I-94 for the alien
6) Filing Fee of $110
7) Form I-539 including all family members of the alien
8) Copy of Form I-94 for each family member
9) Filing Fee of $120 for change of status

Aliens already in the US can apply for H-2B status through the application for change of nonimmigrant status.

Application Procedure:

1) Form I-129 is filled out along with the H Supplement
2) The application must be filed with the same supplementary evidence as the  
     original H-2B application (see above)
3) Filing Fee of $110
4) If family members of the applicant are also present in the United 
    States, a separate application for change of status including all of 
    the family members should be filed along with the H-2B alien’s  
    application. This application for the family is filed on Form I-539, 
    with a separate filing fee of $120
 
Persons who are out of status at the time of filing the change of status application must apply for the H-2B classification abroad. If the applicant overstayed the authorized period of his stay, he must apply for the change of status at the consulate located in the country of the alien’s nationality. A consulate in a country other than the country of the alien’s nationality will not process the application unless there are “extraordinary circumstances” which warrant the processing outside of the country of the alien’s nationality. If the person has overstayed their authorized stay by more than 180 days, they may be ineligible to return to the US for a period of three to ten years, depending on 
the amount of time of the overstay.