U.S employers are eligible to acquire H-2B visas for their foreign skilled or unskilled employee(s) to come to the United States to perform temporary non-agricultural work on a one- time, seasonal, peak-load or intermittent basis. The U.S employer must offer a full-time job position that is temporary. In order to acquire a H-2B visa, U.S employers must complete the following three steps.
STEP I: Department of Labor Certification:
U.S employers must first obtain a foreign labor certification from the Department of Labor. An employer is required to obtain a labor certification to show that that there are no qualified U.S workers for the job(s) and that the alien’s employment will not adversely affect the wages and working conditions of similarly employed U.S workers. The U.S employer will submit its application to the Department of Labor, (DOL). The application must include the employer’s information, the alien’s information and information regarding the job title, job duties, job requirements, length of employment, job location, rate of pay and a detailed statement explaining the basis for employing the temporary worker. The U.S employer must also provide documentation to show that the offered job is a temporary job based on one of the following temporary needs:
A. One-Time Occurrence: The U.S employer must show that it has either (1) not employed to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or (2) it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker(s);
B. Seasonal Need: The U.S employer must establish that the service or labor is traditionally tied to a season of the year by an event or patters and is of a recurring nature. The employer shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the employer’s permanent employees;
C. Peak load Need: The U.S employer must establish that (1) it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and (2) the temporary additions to the staff will not become a part of the employer’s regular operation; or
D. Intermittent Need: The U.S employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.
In addition to the application, the U.S employer will be required to place an advertisement for the temporary job in the local paper. The U.S employer will be required to prepare a recruitment report. Once the U.S employer has submitted all required documentation and the recruitment report to the DOL, the DOL will review the application. The processing time ranges from 2-3 months. The DOL will reject any applications that are filed more than 120 days before the worker is needed.
STEP II: Immigration
After the U.S employer received an approved certification from the DOL, the employer must now submit its application for the non-immigrant worker and supporting documentation to Immigration for processing. Immigration will not accept applications more than 6 months before the worker’s start date for employment. In addition, the application should not be submitted less than 45 days before the worker is scheduled to begin work.
STEP III: Consular Processing:
If the prospective worker is outside of the US, he/she must then apply for a visa with the US consulate.
The employee will take the following to the US Embassy:
- DS-156, Application for Nonimmigrant Visa
- DS-157 if male between the ages of 16 and 45)
- The necessary filing fees
- Copy of Notice of Approval of H-2B Petition
- One passport-style photo
- Evidence of ties to the home country (family, property, current occupation, etc.) Like with any other nonimmigrant visa, the Consulate needs to see that each applicant has ties to the country so that he or she will return home after their work period ends.
If the prospective worker is already in the United States and is changing from one non-immigrant visa to the H-2B visa the worker does not need to leave the United States. However, if the prospective worker is out of status then he/she will need to appear at the U.S Consulate to obtain the H-2B visa.
Disclaimer: This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Estate Planning. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email.