H-2B Visa: Everything You Need to Know

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.

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.

Below are the countries eligible for the H-2B visa:

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).

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.

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.