In the United States, the H-2B program was established to allow foreign non-agricultural workers to come to the United States to fill temporary jobs. Through this program, the country makes it possible for certain individuals to qualify for an extended-but-temporary stay in the country to fulfill these nonagricultural jobs.
If your situation might call for an H-2B Temporary Non-Agricultural Worker status, it’s important for you not only to understand what this status means, but how to go about achieving it – as well as whether you might qualify.
There are two sides to this coin: first, there are the H-2B workers who qualify based on the need of a business, and their skills and abilities. Then there is the employer side. An employer must be able to demonstrate a need to hire a temporary nonagricultural worker by showing:
1.) There are not enough U.S. workers who are “able, willing, qualified, and available” to do this temporary work;
2.) Employing H-2B workers will not adversely affect the wage scale or “working conditions” of other U.S. workers in the same line of work; and
3.) There is a temporary need for the work. The employer’s need is temporary if it is one-time occurrence, seasonal need, peakload need, or intermittent need.
But that’s just the angle from the employers’ side. What should those outside the United States who might seek work using the H-2B Temporary Non-Agricultural Workers program expect?
Before the process begins, an individual should make sure that they would, in fact, qualify for this status in the first place. Otherwise, they face a heavy load of paperwork and waiting for something that won’t happen. Individuals should also note that there is a numerical limit, or “cap,” set by the Congress on the number of foreigners who may be issued a H-2B visa during a fiscal year. Currently, the cap is set at 66,000 workers. If the number of applications surpasses the cap during the fiscal year, applications are randomly selected. There are some workers who are exempt from this numerical limit, therefore it is important to consult an attorney to see if you qualify for the exemption.
USCIS lists three steps necessary to apply for H-2B visas. While these steps sound fairly simple, each step requires the submission of forms and documents and the process is quite involved. The three steps are:
First, the employer must apply for and receive a temporary labor certification with the U.S. Department of Labor (DOL).
Second, after receiving the temporary labor certification, the employer must file Form I-129 with the U.S. Citizenship and Immigration Services (USCIS). What should you expect from Form I-129? The I-129 form can be intimidating as it is 42 pages long (not all pages are required for H-2B). You can expect to fill out personal details, as well as details about the work to be performed. Keep in mind that the standards for the H-2B program tend to be high, which is why it’s critical to understand these requirements beforehand.
Third, once USCIS approves Form I-129, the prospective foreign worker must apply for a visa to the United States with the U.S. Department of State, which will require a trip to an embassy or consulate. After the visa has been issued, the worker will then seek admission to the United States with the U.S. Customs and Border Protection at a U.S. port of entry.
There may be some instances in which a visa is not required and a worker may seek admission with CBP at a U.S port of entry; but make sure you have checked with the appropriate authorities and experts before seeking entry.
This program can be useful for those seeking gainful employment in the United States when such employment is needed within the U.S. For more information, contact Reeves Immigration Law Group and find out about the H-2B Temporary Non-Agricultural Workers program and find out if it applies for your case.