The H-2B visa program permits US employers from different nonagricultural segments to hire foreign nationals to fill temporary or seasonal employment gaps. Keep reading to find out the essentials of the H-2B visa program.
What is the H-2B Visa Program? – Basic Requirements
Prospective foreign workers may not self-petition with the United States Citizenship and Immigration Services (USCIS) for a visa. Instead, USCIS requires that a US employer or a US agent (as described in the regulations) must apply on the worker’s behalf.
USCIS may only approve H-2B petitions for nationals of eligible H-2B countries. Every year, the Department of Homeland Security publishes the list of H-2B eligible countries via Federal Register notice. Once published, the designation is valid for one year.
The first step for a US employer is to file Form I-129 (Petition for a Nonimmigrant Worker) with USCIS. As the H-2B visa application involves different government agencies, employers must obtain a temporary labor certification from the US Department of Labor (DOL).
When filing the paperwork, US petitioners must establish that:
- There are not sufficient domestic workers who are able, willing, qualified, and available to fill the employment gap
- The employment of foreign labor will not adversely impact the wages and working conditions of domestic workers in similar employment
- The employer’s need is considered temporary by USCIS
H-2B Temporary Employment – USCIS Requirements
USCIS has specific definitions to determine whether a job offer is temporary. According to the agency’s definition, an employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.
When filing with USCIS, US employers claiming a one-time occurrence must prove that it has:
- An employment situation that is otherwise permanent, but temporary circumstances of short duration created a sudden need for temporary workers, and
- Not employed workers to perform this specific type of service in the past, and will not need workers to perform the same activities in the future
US petitioners claiming a seasonal need must demonstrate that the type of activities for which the company is recruiting foreign labor is traditionally tied to a season of the year with a recurring nature.
Petitioners cannot claim a seasonal need when the period when they do not need the services of foreign workers is unpredictable, subject to changes, or considered a vacation period for the company’s permanent employees.
Filing with USCIS to bring foreign workers to the United States as a solution for a peak-load need requires petitioners to demonstrate that:
- They regularly employ permanent workers to perform those activities at the place of employment
- There is a need for additional workers to temporarily supplement the permanent staff
- The need for additional workers is justified by a seasonal or short-term demand
- The additional workers will not become part of the company’s regular operation
To file a USCIS petition based on intermittent need, US petitioners must demonstrate that:
- They have not employed permanent or full-time workers to perform the services or labor, and
- The need for temporary workers is occasional or intermittent, restricted to short periods of the year