H-2B Visa for Nigerians

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Overview

The H 2B visa is a nonimmigrant visa that permits foreign nationals to work in the non agricultural sector for a U.S employer. The USCIS approves this visa because no U.S. worker can do the work required at that given time.

For this visa, there is a 66,000 cap per fiscal year which runs from October to September. The target is to issue 33,000 visas in the first half of the fiscal year (October to March), while others will be issued from April to September.

Note that if the USCIS does not issue all 66,000 visas in a year, the balance is not moved to the following year.

The H 2B visas are issued for temporary non agricultural work in the following industries:  warehousing, hospitality, ski resorts, golf courses, construction, water parks, spa and theme parks, cruise ships, retail stores, hospitality, sports and athletics, restaurants and bars, and maintenance and janitorial services.

These industries have their peak seasons, and they require many employees to meet the demands of the customers.

It is important to note that Nigerians are not eligible for this visa. However, the list of eligible countries is updated once every year, so Nigeria could be added in the future.

Eligibility Criteria

You and your U.S. employer must meet certain requirements before you apply for the H 2B visa.

Eligibility Criteria for Employer

While making this application, your employer is referred to as the petitioner, and they must prove to the USCIS that:

• employing a foreign national will not affect the pay of U.S.-based staff already working for them.
• they have an establishment with a physical location in the U.S.
• there is no U.S.-based individual who has the skill and willingness to do the job temporarily.
• they have a valid FEIN (Federal Employer Identification Number).
• the role for which you are being hired is a temporary one.

For the USCIS to consider a job as temporary, it must be a one-off job, a job that needs to be done at a particular time of the year or an intermittent job.

For your employer to convince the USCIS that the job is a one-off, they must prove that they have not employed anyone in that role before and would not need to do so.

If they want to convince the USCIS that a job needs to be done at a specific time of the year, they must prove they’re not planning on giving you a permanent offer. They must also show that they have other permanent staff and only need you to complement their work due to excess demands.

If your employer aims to convince the USCIS that your job is intermittent, they must prove they don’t have any employee who has done or is doing your job permanently.

Eligibility Criteria for Employee

As an employee, you must prove that:

• you plan on going back to your country when your employment contract ends.
• you can do the job for which you are being employed satisfactorily.
• you have a job offer from an eligible U.S. employer.
• you are from a country on the eligibility list.

Eligible Country List for H 2B Programme

Here is a table containing all the countries on the list. Do note that the US government updates this list often. New countries can be added, while others can be removed.

It is pertinent to note that Nigeria is not on the list of eligible countries. However, there are alternative approaches you can consider in this situation.

• If you are a Nigerian and also a citizen of one of the eligible countries, you can apply.
• Your employer can write to the Department of Homeland Security showing your qualifications and skill set, proof of your ties to Nigeria and documents proving you will be a valuable addition to their organisation and the U.S labour market. If the Department of Homeland Security approves, your application can now be treated by the USCIS.

How to Apply

Application for the H 2B visa is divided into two parts. The U.S. employer does the first part, while the foreign national does the second. Below are the steps your US employer must take during the application process.

Temporary Labor Certification Application

Your U.S. employer must first file ETA Form 9142B, Application for Temporary Labour Certification. This petition is to be filed with the Department of Labor. And this must be done between 120-150 days before the foreign national starts working in the U.S.

To file ETA Form 9142B, your employer must do the following:

• File ETA Form 9141, Application for Prevailing Wage Determination (PWD) at the National Prevailing Wage Centre (NPWC). Your employer can file this through the iCERT platform or mail the form to the Washington DC National Prevailing Wage Centre. That is the only wage centre that accepts manual applications.
• Post a vacancy at the State Workforce Agency (SWA) that covers the area where you will work. The Department of Labour must see evidence of this before approving the petition. This vacancy must have gone unanswered for at least 10 days.
• Make a H 2B application to the Chicago National Processing Centre. This should be done by sending a copy of the job order and all supporting documents. Your employer must make this application within 75-90 days before you start working.

Petitioners must apply to the Department of Labour through the FLAG system. However, if your employer cannot access the FLAG system, they can send their application to the National Processing Centre in Chicago.

Upon receipt of your employer’s petition, the Department of Labour will decide within 7 working days. If the decision is favourable, your employer can now proceed to the next stage of the application process. This permit is valid for 3 years.

Petition for a Nonimmigrant Worker, Form I-129

Your U.S. employer must file Form I-129 once the ETA 9142B has been approved. They will petition the service centre closest to their main office. Here are the service centres in the U.S.: Nebraska, Vermont, Texas or California Service Center.

It is important to note that Form I-129 is for a single employee. If the employer has multiple employees they want to hire, they must file Form I-129 for each of them.

Petition for a Nonimmigrant Worker must be made 45-180 days before the day the employee starts working.

Upon approval of Form I-129 by the USCIS, your employer will get Form I-797. This form contains all the instructions your employer must follow while hiring you. It includes when they can hire and how long your employment will last.

Breaking any of these rules will result in the USCIs refusing future Form I-129 applications from the employer.

Required Documents for the US Employer

• Copy of the job order placed at the State Workforce Agency
• Approved ETA Form 9142B.
• Evidence of tax payment which shows the business address and Federal Employer Identification Number.
• Evidence that the foreign employee has the needed skill for the job.
• H classification supplement to Form I-129.
• Receipts showing payment of filing fees.

Employee Application Process

If the USCIS approves the petition for a nonimmigrant worker, you can apply for the H 2B visa online. This application must be made in your country of residence.

To make the application, you file Forms DS-160, DS-156 and DS-157 online through the US embassy website. Form DS-157 is for male employees aged 16 to 45. These forms collect your personal, educational and work information.

Even though you must not complete the application in one sitting, you must do so within 30 days.

After filing the forms online, you must sign and submit them electronically. You must present this form to the U.S. consulate officer during your interview.

You may be denied entry into the United States if you do not travel within the dates approved on Form I-797.

Documents Required for Employee

• Valid passport. Note that your passport must be valid for at least 6 months after your H 2B visa expires.
• Passport photograph taken not more than 6 months ago.
• Travel itinerary.
• Proof of payment of visa application fees.
• Evidence of ties to home country.
• Form DS-157 and DS-156.
• Copies of approved Form I-797 and Form I-129.

H 2B Visa Fees and Processing Times

Processing Time

The Department of Labour takes 7 working days to approve ETA Form 9142B. But the approval from the USCIS and getting an interview date has no specific time. Generally, it can take 60 to 120 days. However, if your employer pays for premium processing, they can get a decision within 15 working days.

 Fees

• $460 for Form I-129.
• $190 for DS-160.
• $1500 if your employer wants expedited service.

Bringing Family Members On An H 2B Visa

You can bring your family to the U.S. with an H 2B visa. But you can only bring your spouse and unmarried children below 21 years. Also, note that your family members do not have the right to work in the United States as they are placed on H-4 status.

Validity of H 2B Visa

The validity of the H 2B visa depends on how much time the USCIS approves Form I-797, but it is never more than one year. Time spent outside of the U.S. also counts.

H 2B Visa Extension

Your H 2B visa can be extended if your employer applies for an extension and gets approval. However, they will have to convince the USCIS that they need you. This extension usually covers one year.

After a year, they will have to apply for another extension. At the expiration of the second extension, you must leave the U.S. for at least 3 months before reapplying.

Limitations of H 2B Visa

One of the limitations of the H 2B visa is that you have limited permits to travel in and out of the U.S. If you exceed the stated limit, you may not be readmitted to the U.S. if you leave.

Alternatives to H 2B Visa

Since Nigeria is not on the list of eligible countries, and there is no guarantee that the Department of Homeland Security would approve, you should check for alternatives.

Here are some of the nonimmigrant U.S. work visas you can apply for as a Nigerian:

• H-1 visa is for university graduates with exceptional skill sets needed by a US employer.
• L-1 visa allows you to work in the U.S. branch of your company domiciled in Nigeria.
• O visa allows you to work temporarily in the U.S., but you must show an extraordinary achievement or ability in arts, business, education, science or sports.

How Can IAS Help?

The application for the H 2B visa is complex and challenging due to the documentation process. This is often why some employers shy away from employing foreign nationals even if they need them. But IAS can make this process easier for you and your US employer by providing guidance.

We understand that a visa denial can be disappointing, especially after a long processing time. That is why our immigration lawyers are available to:

• Check your eligibility for the programme
• Assess your employer’s eligibility
• Assist your petitioner in filing ETA Form 9142B and Form I-129
• Review your supporting documents
• Guide your employer on how to write a convincing letter to the Department of Homeland Security on your behalf
• Track your application status.

We can also help you apply for another similar type of visa based on your circumstances, such as a US H-1, L-1 or O visa or any other visa based on your situation.For more information about the services we provide and how we can help you reach out to a member of our team today. Call us on +44 (0) 3316300929 or contact us online.