USA and the UK
- What is the H-2B Visa?
- What Are the Eligibility Criteria for Employers?
- What Are the Eligibility Criteria for Employees?
- Countries Eligible for the H-2B Visa
- Application Process
- Filing Form I-129, Petition for a Nonimmigrant Worker
- Application Process for Employee
- Reasons Why an H-2B Visa Application Could be Denied
- Processing Times
- How Can IAS Help?
- Frequently Asked Questions
What is the H-2B Visa?
The H-2B visa is one of the U.S Work visas which allows foreign nationals to come and work in the United States temporarily. This visa is for non-agricultural employees. The H-2B visa is temporary and for work which is seasonal, one-time, intermittent or peak load.
The U.S Government grants H-2B visas to workers needed in the following industries: hospitality, cruise ships, construction, resort and theme parks, golf courses, water parks, landscaping, ski resorts, maintenance and janitorial, warehouses, retail stores, restaurants and bars, sports and athletics. These industries are sometimes in high demand and therefore need a large workforce to meet such teeming demands.
There are certain requirements that both the U.S. employer and the foreign employee must meet in order to apply.
What Are the Eligibility Criteria for Employers?
To be eligible for a H-2B visa, your employer has to meet certain eligibility requirements.
Firstly, your employer (also known in this process as the petitioner) has to prove the following:
- That there is a shortage of U.S based staff that are qualified, willing and able to do the work temporarily.
- That employing you will not negatively affect the employment benefits of other U.S-based staff in their establishment.
- That they have a business physically based in the U.S.
- That they have a valid Federal Employer Identification Number (FEIN).
- That your employer’s need for you is only temporary.
Your employment is considered temporary if it is a one-time occurrence, seasonal need, peak load need or intermittent need.
Your employer has to prove on-time occurrence by showing that they have:
- A permanent employment opportunity but need a temporary worker due to an event of short duration.
- Not employed anyone to perform the task before and will not need anyone else to do so in the future.
If your employer is claiming a seasonal need, they must show that the job you’re coming to do:
- Is tied to a particular time of the year.
- Is a recurring role.
If your employer is claiming peak load need, they have to show that they:
- Employ permanent workers in their establishment.
- Need to supplement staffing needs due to excess demands.
- Don’t intend to make you a permanent staff member.
If your employer is claiming intermittent need, they must show that they:
- Sometimes need temporary workers to perform some roles for a short time.
- Have not employed someone else permanently to do the work for which they are about to hire you.
What Are the Eligibility Criteria for Employees?
To be eligible for the H-2B visa, you must show that:
- You have an employment offer from a U.S employer.
- You intend to return home after your permit expires.
- You have the skills your U.S. employer needs
- You are from an eligible country.
Countries Eligible for the H-2B Visa
Below are the countries eligible for the H-2B visa:
|Argentina||Solomon Island||South Africa||Peru||Barbados|
|Madagascar||Papua New Guinea||Monaco||Jamaica||South Korea|
|Fiji||The Philippines||Greece||Czech Republic||Japan|
|Bosnia & Herzegovina||Haiti||Andorra||Mozambique||Mauritius|
|St. Vincent and the Grenadines||Nauru||The Kingdom of Eswatini||United Kingdom||Saint Lucia|
The bulk of work to be done when applying for the H-2B visa lies on the employer.
Filing ETA Form 9142B, Application for Temporary Labor Certification
The first step your employer has to take in this regard is filing for temporary labor certification, also known as ETA Form 9142B. This petition is made to the Department of Labor.
The petitioner files this to prove to the Department of Labor:
- That there is a shortage of U.S based staff that are qualified, willing and able to do the work temporarily. This is usually done by showing the Department of Labor that an advert for the job has been made on the local job listing for three weeks, and no one has indicated interest or is qualified for the role yet.
- That employing you will not negatively affect the employment benefits of other U.S-based staff in their establishment.
To File ETA Form 9142B, your employer or petitioner has to take the following steps:
- Register with the Department of Labor between 150-120 days before they need you.
- File Form ETA 9141, Application for Prevailing Wage Determination (PWD) at least 60 days before it is needed at a National Prevailing Wage Center (NPWC). This is filed electronically using the iCERT System or by mail to the Washington DC National Prevailing Wage Center.
- File a job order with the State Workforce Agency (SWA) in charge of the area where the foreign employee would work.
- Submit the H-2B application with necessary supporting documents and a copy of the job order to the Chicago National Processing Center between 90-75 days before the employee’s start date.
The U.S government provided a system known as the FLAG System for electronic filing of H-2B applications. The application package must include Form 9142B, the Prevailing Wage Determination case tracking number, a copy of the job order, relevant appendices, and other supporting documents.
If the employer or petitioner does not have access to the FLAG System, they can submit their application by mail and state why they cannot use it. The mail must be sent to the Chicago NPC address.
After filing, the Department of Labor will review the petition within 7 business days. The certification officer will reject, reduce the duration or approve the petition.
When ETA Form 9142B, Application for Temporary Employment Certification, is approved, the employer will now have to file Form I-129, Petition for Nonimmigrant Worker to the United States Citizenship and Immigration Services (USCIS).
Your employer will have to file Form I-129 for you after ETA 9142B has been approved. Where your employer will file Form I-129 depends on the service center nearest to your employer’s primary address. The service center could be the Vermont, Nebraska, Texas or California Service Center.
If your employer or petitioner needs you urgently, they must also file Form I-907, Application for Premium Processing, when filing Form I-129.
The application must be submitted within 45 to 180 days before the employer needs the employee. Also, the application is made separately for each employee, and they are not transferable. So, if the petitioner wants to employ 5 foreigners, they’d have to petition the USCIS individually for each foreigner.
It will cost your employer $460 to file Form I-129. This can be paid via check, money order, credit card or cashier’s check. This filing fee is non-refundable regardless of the outcome of the application.
Documents Needed to File Form I-129
For USCIS to consider Form I-129, it must come with the evidence of having paid the filing fee and then the following documents:
- H Classification Supplement to Form I-129;
- Proof that beneficiary(employee) meets the minimum job requirements;
- Approved ETA Form 9142B;
- Proof that the beneficiary is needed in the U.S if they are not from eligible countries.
After the Petition for Nonimmigrant Worker, Form I-129, is approved, the USCIS will issue the employer Form I-797. This form contains the window for which the employer can hire. This form also tells the employer when the employment will end. The petitioner must abide strictly by these dates else future applications will be denied.
Application Process for Employee
After the USCIS approves Form I-129, you can apply for the H-2B visa at the U.S. Consulate in your country of residence. The first step is to file Form DS-160 online and print the receipt.
DS-160 form is filed together with DS-156 and DS-157. The latter is only filed by male applicants between 16 and 45. In these forms, you supply your personal and family information, work, education and training information and security-related information.
Note that you have 30 days to complete filing these forms, so it is necessary to have the following handy while applying:
- Passport photograph not more than 240KB and taken not more than 180 days prior.
- Valid passport.
- Travel itinerary.
- Information about your travel history for the past five years.
- Information about your work or education history.
When you are done with the form, you will be directed to a page where you have to sign the form electronically and then submit it. After that, print the confirmation page, as that grants you access when going for your interview at the U.S. Embassy.
The U.S. Embassy will inform you when to come for your interview. While going, you must take the following documents with you:
- Print-out of the DS-160 confirmation page.
- Form DS-156 and DS-157.
- Receipt of visa fee payment. (H-2B nonimmigrant visa costs $190).
- Passport photograph.
- Employment offer from a U.S. employer.
- Copies of approved Form I-129 and Form I-797.
- Evidence you will return home after your job in the U.S.
You can plan your trip to the United States if your interview is successful. Do note that you must travel to the U.S within the dates approved on Form I-797.
Reasons Why an H-2B Visa Application Could be Denied
There are several reasons why the U.S. Consulate will deny a H-2B visa application. One of the primary reasons is that there were enough U.S. workers who could and wanted to do the job. Your visa application can also be denied if the Consulate finds that your employer did not make enough attempts to hire U.S based employees.
Inappropriate and late documentations are also possible causes of visa denials. Therefore, all documents must be filed correctly and at the proper time frame.
Applications can also be denied if the Department of Labor determines that employing a foreigner will affect the wages of U.S. employees already in the petitioner’s business. Again, if a petitioner has broken the rules of the nonimmigrant visa before, the chances of visa denial are high.
Even when everything checks out on the end of the petitioner, the U.S. Consulate officer can deny your application if they cannot determine if you will return home after your job in the U.S.
There are no specific processing times for the H-2B visa because it is a capped permit. On average, getting approval may take anywhere from 5 months to even years, as applications received before yours have to be processed first. If your employer wants a faster service, they can pay $2500 for express service.
Applying for the H-2B visa can be challenging due to the many documentations that need to be done. This can be discouraging for both employers and employees. But with the proper guidance, you can put together a quick and strong application.
At IAS, we understand how disappointing it can be to get a visa denial after the long process of applications and documentation. That is why our immigration attorneys are available to help you:
- Access the eligibility of your employer for the program;
- Help your employer apply to the Department of Labor for ETA Form 9142B;
- Review your employer’s supporting documents;
- Help your employer file Form I-129;
- Track the status of your application.
We can also help if you need to apply for another similar type of visa based on your circumstances, such as a US H-2A visa or any other visa on the basis of your situation.
For more information about the services we provide and how we can help you, reach out to a member of our team today. Call us on +1 844 290 6312 or contact us online.
Last modified on September 14th, 2023 at 8:23 am
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The H2-B visa is valid for the period permitted by the Department of Labor when issuing the temporary labor certification. This is typically less than 1 year. After that, extensions can be done up to a 3-year maximum. After that, you must stay out of the U.S. for at least 3 months before reapplying.
You can bring your family members to the U.S. on an H-2B visa. However, they must be either your spouse or an unmarried child under 21 years of age. This makes them H4 nonimmigrants. And while they are under this classification, they cannot work in the U.S. They cannot enter the U.S. before you or stay in the U.S. after you leave.
H 2b workers can file for a change of status. You can do this if you get a new employer. Your new employer must file a new H-2B petition for you again. You can also switch categories, like moving from H-2B visa to H-2A. Your employer will also have to apply in that regard.
There is a cap for H-2B visas issued every year. For every fiscal year (October to September), only 66,000 permits are issued. Once this cap is reached, every other application will be attended to the following year. Even if the cap is not reached in a year, the difference is not moved to the following year. The USCIS approves 33,000 visas from October to March and another 33,000 from April to September.
The H-2B visa is valid only for nine months but can be extended. However, with the H-2B visa, you can only stay and work in the U.S. for 3 years. After this, you must leave the United States for 3 uninterrupted months before applying again as an H-2B nonimmigrant.
One of the advantages of this visa is that the holders are eligible to enjoy every employment benefit as other employees who are permanent residents or citizens. Secondly, you can bring your spouse or unmarried child that is less than 21 to stay with you in the U.S. You can also switch jobs provided you have another offer and a petition on your behalf has been approved by the USCIS. Lastly, you can travel in and out of the U.S for a specific number of times while holding this visa.
The downside of holding this visa is that you have a nonimmigrant status. This means you cannot stay for long or permanently in the United States.