H-2B Visa Temporary Non-Agricultural Workers
The H-2B Visa program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS), on a prospective worker’s behalf. Upon approval of the I-129 Petition, the foreign national must then apply for a H-2B visa at the U.S. Consulate in his or her home country. Once the H-2B visa is placed in the foreign national worker’s passport, he or she may then apply for admission to the U.S. and begin employment with the U.S. employer.
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- The employment of H-2B visa workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
The employer’s need is considered temporary if it is a:
One-time occurrence
A petitioner (employer) claiming a one-time occurrence must show that:
- It has not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
or
Seasonal need
A petitioner (employer) claiming a seasonal need must show that the service or labor for which it seeks workers is:
- Traditionally tied to a season of the year by an event or pattern; and
- Of a recurring nature
or
Peakload need
A petitioner (employer) claiming a peakload need must show that it:
- Regularly employs permanent workers to perform the services or labor at the place of employment;
- Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
- The temporary additions to staff will not become part of the employer’s regular operation.
or
Intermittent need
A petitioner (employer) claiming an intermittent need must show that it:
- Has not employed permanent or full-time workers to perform the services or labor; and
- Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
H-2B visa petitioners (employers) must also provide a single valid temporary Labor Certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).
The immigration attorneys at Allen & Pinnix have over 35 years experience representing U.S. employers that need to hire foreign nationals to fill temporary nonagricultural jobs. Schedule a confidential consulation or call our office at 919.755.0505.
