The H-2B nonimmigrant classification permits foreign nationals from eligible countries to enter the United States to fill temporary non-agricultural jobs. What happens if an H-2B visa holder wants to adjust their status? Keep reading to find the answer.
H-2B Temporary Non-Agricultural Worker Visa – The Basics
The H-2B program permits US employers or US agents who meet specific regulatory requirements to recruit foreign workers to fill temporary non-agricultural jobs in the United States.
As prospective workers cannot self-petition for a visa, a US employer or authorized agent must apply with the United States Citizenship and Immigration Services (USCIS) on the worker’s behalf. As part of USCIS requirements, US petitioners must establish that:
- Not sufficient US workers are able, qualified, willing, or available to fill the temporary employment gap
- The employment of foreign workers will not adversely affect the wages and working conditions of US workers in similar employment
- The need for the services or labor provided by prospective foreign workers is actually temporary
USCIS has specific criteria to determine whether an employer’s need is temporary. If a petitioner’s need is not a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need, it may not justify the recruitment of foreign workers under the H-2B classification.
H-2B petitioner must also provide a valid temporary labor certification issued by the US Department of Labor (DOL) when applying with USCIS. The statutory annual limit (cap) on the number of H-2B visas is currently fixed at 66,000 visas per fiscal year.
Temporary non-agricultural workers can bring a spouse and unmarried children (under 21) to live with them in the United States.
What is the Period of Stay Under H-2B Status?
In most cases, the period of stay of H-2B visa holders depends on the period authorized on the temporary labor certification. The H-2B visa can be extended for qualifying employment in increments of up to one year.
For each extension request, the US employer sponsoring the application must submit a new temporary labor certification covering the requesting period. The maximum period of stay for H-2B visa holders is three years.
As the H-2B is not a dual intent visa, temporary workers must return home once their visas expire. If an H-2B visa holder maintains the same status for a total of three years, he or she must depart and remain outside the United States for three months (uninterruptedly) before filing for readmission.
Can H-2B Adjust Status? – The Verdict
The H-2B visa is neither an immigrant visa nor offers a direct path to lawful permanent residence in the United States. However, temporary workers can apply for other classifications under H-2B status.
Please note that the validity of H-2B visas depends on the temporary worker’s continued employment with the employer who originally sponsored his or her job offer.
If an H-2B temporary worker finds a US employer willing to sponsor him or her for an employment-based visa or even for another temporary opportunity under H-2B status, the employer must file with USCIS to seek approval.
It is not unusual to find former H-2B visa holders who applied for family-based visas and succeed, especially marriage-based visas. Consult with an expert attorney to identify an adequate solution for your case.