H2B Visa (Temporary Non-Agricultural Workers)

What is the H2B Visa?

The H2B Visa is a nonimmigrant visa that allows U.S. employers to hire foreign workers for temporary non-agricultural work. This can be a one-time job, seasonal job, intermittent, or peak load.

It’s the direct contrast with the H-2A visa, which is for temporary workers in the agricultural sector. At the same time, it’s different from temporary employment in the non-agricultural sector.

Non-agricultural seasonal workers, both skilled and unskilled, are eligible to apply for the US H2B visa. Business trainers, performers, athletes, camp counsellors, ski instructors, and home attendants for terminally ill patients are all typical eligible candidates for this visa.

You must first have a job offer for a position for which there is a scarcity of U.S. workers willing or able to fill it. With an H2B visa, you can bring your eligible immediate relatives to the United States.

The U.S. Congress set a numerical maximum of 66,000 H2B visas per fiscal year. 33,000 commencing in the first half of the fiscal year (October 1 – March 31) and 33,000 for employment commencing in the second half of the fiscal year (April 1 – September 30).

Because this category receives a high volume of applications, not all eligible applicants get a visa in the year they apply.

H2B Visa Requirements

To apply for the H2B visa, you need a sponsor in the United States. You must have a temporary job offer from your sponsor. The job offer must not be in agricultural or associated industries.

In addition, your sponsor (employer) must show that there aren’t enough US-based workers to fill the job positions. In summary, you must meet the following requirements to be eligible for application:

• You must be a citizen of one of the eligible countries as designated by the Secretary of State for the H2B Visa Program.
• Your sponsor (employer) must be US-based with labor certification.
• You must have the basic qualifications for the non-agricultural job you want to do.
• There must be no qualifying and willing U.S. workers to fill the position.
• You must have ties to your home country to show that you will return home when your visa expires.

Job Position Eligibility Criteria

The H2B Visa Program allows you to work in a variety of fields in the United States. However, to qualify as a temporary job position, it must be any of the following:

• Seasonal need: These are jobs that are needed during a specific season. These types of jobs are recurring, usually annually. However, the job duration cannot change and mustn’t be during the vacation period of permanent U.S. workers.
• Intermittent need: These are jobs without sufficient full-time workers. Hence, the employer needs temporary part-time workers to assist.
• Peak-load need: These are open job positions during very busy times, and an employer needs additional workers.
• One-time need: These are jobs that last for a very short period and just for a one-time period.

H2B Visa Application Process

To start your application, your employer must post recruitment adverts for the job in the United States. If no U.S. worker is available, then they can apply for a temporary labor certification from their local state workforce agency (SWA).

The U.S. Department of Labour will receive the application from the SWA and issue the labor certification after assessment. Following the approval of the labor certification, your employer must file a visa petition on Form I-129 with the USCIS.

Form I-129 is the petition for non immigrant worker form. If you’re already lawfully in the United States on another visa, your current status will change to H2B after the approval of Form I-129.

This means you can start working with your H2B sponsoring employer immediately after the I-129 approval. If you’re outside the United States, you may need to undergo consular processing, which includes a visa interview.

Hence, you need to complete a U.S. nonimmigrant visa application, Form DS-160. There are documents you have to present at your visa appointment. You may also have to attend a medical exam to prove you’re in good health to enter the U.S.

H2B Visa Required Documents

For applicants outside the U.S., you’ll need to provide all or some of the following documents at your visa appointment:

• Form DS-160 application confirmation page
• Form I-129 approval page from your employer
• Valid international passport
• Passport-style photographs according to U.S. visa standards
• Proof of ties to your home country to show that you’ll be returning. This could be proof of ownership of valuable property, family ties, etc.

If you’re applying alongside your dependents, then they’ll also present the following documents:

• Valid international passport
• Passport style photographs
• Birth certificates for unmarried children under 21
• Marriage certificate for spouse

You should only go with the original copies of this document. If any of your documents are not in English, you’ll have to provide certified English translations.

H2B Visa Fees

Typically, employers cover the cost of the Form I-129 application. Also, they are to pay the premium processing fee if they are using the service.

Other fees may also apply, such as the Visa Issuance Fee if your application is approved. However, this will depend on your home country.

H2B Visa Processing Time

In general, your H2B Visa sponsor can file the petition 60 days before the employment start date, but no more than 120 days.

However, you may not get the visa the same year you apply for it due to the high application volume. H2B visa processing involves consecutive steps such that each step is dependent on the completion of the previous step.

If your employer wants an expedited process, they can use the premium processing service and receive a decision on the I-129 petition within 15 days. This service will cost an additional $1,685.

For premium processing, they have to file Form I-907. However, you cannot apply for premium processing if the annual visa cap has been met. Therefore, it’s important to confirm beforehand.

Unlike other service fees, the USCIS can refund the premium processing fee if they cannot complete the processing within 15 days.

H2B Visa Validity

The H2B visa is usually valid for one year, and the expiry date will be in the Form I-129 and also on your visa. You have the option of extending your maximum stay in one-year increments for a maximum total of three years.

H2B visa extension is only applicable in “extraordinary circumstances”. Extraordinary circumstances imply factors not normally incident to or foreseeable during an administrative proceeding.

Your employer must also extend the Labor Certification or apply for a new one every time you apply to extend your stay. Following the completion of the 3 years stay, you must depart the United States.

If you still have an H2B job offer in the U.S., you can reapply for the visa after spending three consecutive months outside the U.S.

It is also possible for your employment offer to be terminated before the end date of your period of stay. In such a situation, you must notify USCIS, after which you’ll have to depart the U.S.

Applying for a Green Card

Although you can work with an H2B visa, you cannot directly apply for a green card. The only way to apply for a green card is if you change your status to a visa that allows adjustment of status to permanent residence. While in the U.S., on H2B status, you can come across other job offers. A new U.S. employer may offer you a job and sponsor a new Form I-129 in a visa category that allows green card application.

Travelling to the U.S. with your dependents

With the H2B visa, your spouse and children under the age of 21 can accompany you to the United States. They’ll have to apply for the H4 visa. With the H4 visa, they can travel with you to the U.S. or join you later.

However, they cannot enter the U.S. before you or stay after you leave. Also, your dependents cannot work in the U.S. under the H4 visa. Some exceptions to work are available for H4 dependents of H1 visas, but there’s none for H2B dependents.

The only way to work is if they change their visa status to a different one which can be difficult unless the job offer falls under the H2 visa class as well. Your family can seek an extension of their H4 visa if the USCIS approves your H2B visa application.

How can IAS help?

The H2B Visa is valid only for temporary workers looking to be hired by a US business who hire migrant workers. In other words, if you wish to seek continuous and permanent employment in the U.S., this is not the right visa for your situation.

Establishing what jobs and services fall into the legal categories of “intermittent need” or “seasonal need” may not be easy. Every year, several applicants have their petitions rejected because they fail to submit evidence of their case.

For this reason, it is advisable to seek legal guidance. At IAS, our immigration attorneys are ready to offer their best immigration advice to help you enter the U.S. for a temporary job.

If you are a U.S. company and you wish to employ foreign workers, we can guide you through this process as well.

Our bespoke H2B Visa Program service includes:

• Review your job offer or contract to assess your role’s eligibility;
• Help your H2B Visa sponsor obtain a Temporary Labor Certification;
• Check your supporting documentation;
• Liaise with your U.S.-based sponsor;
• Check the progress and status of your application depending on the annual cap.

To get in touch with one of our immigration lawyers, call us on +1 844 312 4979 or use our online contact form.