Warning: Please refer to this information for a general outline of the H2B process. Please note that these steps may change at any time. This is a very complicated hiring process and this guide refers to New/Returning H2B employees. The H2B transfer process is different.
What is a visa?
Visa: An official endorsement from the US department of State granting eligibility for admission to the US.
Who needs it
A citizen of a foreign country who plans to enter the US for a specific purpose
What it is
A stamp placed in the passport by the US Consulate/Embassy abroad.
Our needs
We need a temporary non-immigrant work visa H-2B, which is for seasonal non-agricultural workers
Who can US businesses Employ?
Any employer can hire:
- US citizen
- Green Card Holder (lawful permanent resident)
- Work Permit Holder (green card applicants, spouses of E, J, or L visa holders, students in post-graduate training)
Only certain employers can hire:
- Student visa holders with authorization to work off-campus (F, M, or J students)
- Seasonal Temporary Workers (H-2A, H-2B)
- Professional Visas (-1B, E, L, TN)
No employer can hire:
- Student visa holders without authorization to work off-campus (F, M, or J students)
- Spouses of certain visa holders (H-4, F-2, TD)
- Tourists (B-1, B-2, VWP)
- Those who stayed longer than permitted or entered US illegally and have no other status pending
What is the H-2B Visa?
- For seasonal, intermittent or one-time employment
- Valid for up to one year, two one-year extensions are available (up to max of 3 years in US before they must return)
- Temporary Labor Certification from Department of Labor (DOL) is required before filing
- Timing is crucial in getting these visas!
Who qualifies for H-2B Visas?
The petitioner (the company) has to establish the following:
- There are not enough US workers who are able, willing, qualified and available to do the temporary work.
- The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers.
- The companies need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
One time occurrence must prove:
- Not employed workers to perform the service or labor in the past and will not need workers to perform in the future
- An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker
Seasonal need must prove:
- Traditionally tied to a season of the year by an event or pattern and must be recurring
- Not considered seasonal if the period of employment is unpredictable, subject to change or considered a vacation period for the employer’s permanent employees.
Peak load need must prove:
- Regularly employee permanent workers to perform the services or labor at the place of employment
- Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand and shows that these temporary additions will not become a regular part of the operation.
Intermittent need must prove:
- They have not employed permanent or full-time workers to perform the services or labor and occasionally or intermittently needs temporary workers to perform services or labor for short periods.
What are the H-2B application steps?
1. Determine if visas are still available.
- We file on January 1st of each year so there are visas available and the sooner we apply, the higher chance we have of getting our visas
- There is a cap to the number of H-2B visas and it is divided into 2 six month time frames.
2. Figure out the position’s job descriptions and make sure it qualifies for the H-2B visa.
- We are defined as seasonal need
- We use Hotel Clerk, Baggage Porter, Counter Attendant and Housekeeper for our job descriptions
- This must be a full-time position
- Can apply for multiple beneficiaries as long s they will be doing the same type of work on the same terms & conditions in the same area of employment
- Must also demonstrate there is no labor dispute at the workplace (ex. strike)
3. Submit the job description for Prevailing Wage (PW) or higher as we take the highest prevailing wage and pay all of the employees that rate.
4. Register with the DOL, the Chicago National Processing Center (NPC) to establish need for H-2B (prior to filing with State Workforce Agency [SWA]).
5. Submit job order to SWA in the area of intended employment concurrent with filing for ETA-9142.
6. Prepare and File the for ETA-9142 to United States Citizenship and Immigration Services (USCIS) after the Prevailing Wage Determination (PWD) is obtained
- I-129 with H-2B supplement form
- Beneficiary qualification (where required)
- Statement of temporary need and acknowledgment of paying beneficiary’s return transportation abroad if dismissed
- Filing fees = $325 (application), $500 (fraud prevention) and $1,225 (premium processing)
- Need TEC? Notice of Acceptance (NOA) or Notice of Disqualification (NOD) before proceeding
- Need evidence addressing temporary nature of employer’s needs
- Need evidence for the number of employees needed
- Need evidence that agent meets qualifications above under 214.2(h)(2)(i)(F) (see below).
- Need itinerary, including services and dates of engagement and names and addresses of employer and place of work if filed by an agent
- Evidence of applicants nationality (must come from country on designated list of countries applicable to H-2B program) and separate filing for employees from non-eligible countries
- Additional attestation requirements including petitioner’s responsibility for return transportation costs, agreement to notify USCIS if employee fails to appear or abandons work, and that beneficiary has not paid fees to obtain the employment.