H-2B VISA

The H-2B 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.

Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the business must establish that:

- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

- Employing H-2B 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.

H-2B Cap:

There is a statutory numerical limit, or "cap," on the total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Generally, workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of employment will not be subject to the cap. Similarly, H-2B workers who have previously been counted against the cap in the same fiscal year that the proposed employment begins will not be subject to the cap if the employer names the workers on the petition and indicates that they have already been counted. The spouse and children of H-2B workers classified as H-4 nonimmigrants are also not counted against this cap.

H-2B Process:

1. Petitioner submits temporary labor certification application to DOL. Before requesting H-2B classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).

2. Petitioner submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS.

3. The prospective workers outside the United States apply for visa and/or admission. After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:

- Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or

- Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.

Note: If you are petitioning for one or more Canadian musicians that will be employed within a 50 mile radius from the U.S.-Canadian border for 30 days or less, you may skip Step 1 in the H-2B process.

Eligible Countries:

Not all countries are eligible for H-2B visa entry. The list of countries that are eligible are listed at the USICS webpage.

Filing Fee:

It cost $460.00 to file the I-129 Form.

Length of Stay:

The length of stay is determined by the USCIS when they grant the temporary certification. Extensions can be granted in increments of up to 1 year each. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant.

Family Members:

Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

Employee Fee Collection:

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an alien H-2B worker as a condition of employment.

Notification:

Businesses of H-2B workers must notify USCIS within 2 workdays if any of the following occur:

-No show: The H-2B worker fails to report to work within 5 work days of the latter of:

-The employment start date on the H-2B petition; or

-The start date established by the employer;

-Abscondment: The H-2B worker leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;

-Termination: The H-2B worker is terminated before completing the H-2B labor or services for which he or she was hired; or

-Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.