All About H-2B Visas
Within the United States (U.S.), many companies experience seasonal highs and lows when staff requirements fluctuate. During these busy seasons, businesses often have labor needs that cannot be met by local hiring initiatives. At that time, these organizations can utilize H-2B visas to fill any gaps in staffing requirements. The H-2B visa program provides both opportunity to qualified foreign workers and allows U.S. companies to fill vacancies during critical seasons.
Often, employers may hope to utilize H-2B workers but may not know how. Additionally, some foreign nationals may wish to understand more about this program, which oftentimes receives less press than the very popular H-1B visa program. At Nanthaveth & Associates, we not only want to help with your legal needs, we want you to fully understand immigration law and every option available to you. If your company needs guidance regarding H-2B visas (or any visa matter), contact us today!
This article reviews the H-2B visa program, answering the following questions:
- What is an H-2B Visa?
- How do H-2B Visas differ from H-1B visas?
- Is my company eligible for the H-2B program?
- Are there annual limits on how many H-2B workers that can enter the U.S.?
- What countries are workers qualified for H-2B visas?
What is an H-2B Visa?
An H-2B visa is a nonimmigrant visa that qualifying employers sponsor under specific circumstances, allowing them to manage time periods of heavy staffing requirements. Because it is a “nonimmigrant” visa, the visa is temporary. After the allotted timeframe, all H-2B beneficiaries must leave the U.S. and return to their home country.
Further, H-2B visas are “non-agricultural” and thus cannot be used for agricultural workers or within agricultural industries. Visas do exist for seasonal agricultural workers in particular – these are H-2A visas. Finally, jobs filled by H-2B beneficiaries must be seasonal or temporary and cannot replace jobs filled by U.S. citizens.
You can learn more about H-2A and H-2B visas from the U.S. Citizenship and Immigration Services (USCIS).
How do H-2B Visas Differ from H-1B Visas?
Unlike H-1B visas, H-2B visas do not require applicants to have any specific skillset, education, or trade. Further, H-2B beneficiaries immigrate seasonally, and are expected to emigrate once the busy season or one-time staffing requirement is complete for their employer. H-1B workers come to the U.S. to work for a set three-year timespan, which can be extended one time for a maximum stay of six years. Though, it is important to note that while they are considered “seasonal,” H-2B workers are technically eligible to stay for up to three years. Obviously, though, time spent in the U.S. will vary depending on a specific employer’s needs.
You can read more about H-1B visas via our previous article, “A Quick Guide to the H-1B Visa Process.”
Why Can a Company Hire H-2B Workers?
A company can only petition for and employ H-2B beneficiaries under very specific circumstances. The USCIS describes these reasons in more detail on its website, though we summarize the basics below for ease of access.
A company can only hire H-2B visa workers on a temporary basis. The work provided to H-2B beneficiaries cannot be permanent or displace U.S. workers.
A company can petition to hire H-2B workers for one-time occurrences. According to the USCIS, organizations must be able to prove that the position fills a temporary need that will not repeat in the foreseeable future. This can either mean that there is a temporary vacancy in a permanent role or that the company needs to utilize workers for tasks that have not happened before and will not foreseeably occur again. Finally, companies must verify that they do not possess other U.S. employees capable of filling the role(s) and H-2B workers cannot displace any workers at the company.
Companies that experience repetitive and predictable seasonal peak periods may petition to hire H-2B workers. The USCIS considers “seasonal” needs to be any needs that are either cyclically tied to physical seasons (i.e., summer high seasons at U.S. beaches and amusement parks), events (i.e., festivals, shows) that repeat yearly, or any other predictable “peak” season.
According to the USCIS, seasonal needs cannot be unpredictable, subject to change, or fill a standard vacation period for full-time employees.
If a company experiences a time of heightened workload, they can apply for H-2B workers via “Peak-Load Need.” In order to qualify for this occurrence, employers must prove that they are supplementing assistance for full-time workers because of a “seasonal or short-term demand.” Any H-2B beneficiaries cannot become full-time, permanent staff members. Finally, companies petitioning via this eligibility category cannot plan to utilize this as a regular staffing method.
Companies utilizing H-2B workers for intermittent labor needs cannot employ any full-time U.S. workers within similar roles. The duties must truly be on a temporary, intermittent basis, even if the requirements aren’t entirely predictable. In this situation, employers can hire H-2B beneficiaries for short periods of time to cover their staffing needs.
How Can a Company Petition for H-2B Workers?
Most importantly, in order to participant in the H-2B program, a company must meet the above requirements discussed. The work available must be temporary, one-time, or seasonal, and cannot displace U.S. workers. If eligible, companies must also register with the Department of Labor and receive a valid certificate to employ temporary foreign workers. A qualified immigration lawyer can help you obtain this certificate.
Finally, in order to petition for specific H-2B applicants, a company must complete and submit Form I-129, Petition for a Non-Immigrant Worker. Companies must submit a copy of this form on the behalf of every H-2B candidate that it wishes to hire.
Because the paperwork can be complicated, nuanced, and plentiful, Nanthaveth & Associates encourages all companies interested in H-2B workers to collaborate with a skilled immigration attorney. Government requirements are strict, and even small errors or mistakes can lead to large setbacks.
Other Details About H-2B Visas
Other important information exists about hiring H-2B visa workers that employers should know. First, there are annual limits, also known as “caps,” on the amount of H-2B workers who can enter the U.S. Second, H-2B workers can only come from eligible nations. We discuss in more detail below.
Annual H-2B Caps
The U.S. government only allots a certain number of H-2B visas each year. Congress has set the annual H-2B cap at 66,000 workers per fiscal year. The USCIS splits allocation of H-2B availability, with 33,000 workers entering the U.S. during the first half of the fiscal year (October 1 – March 31) and the second half of workers entering April 1 – September 30. If for some reason the bi-annual cap of 33,000 workers is not reached during the first half of the fiscal year, those visas will be available for those entering in April.
If the USCIS receives more applications than visas available in a given time, this triggers a lottery. While the process differs slightly, the H-1B program also utilizes a lottery when demand outstretches supply. For the second half of fiscal year (FY) 2019, applications surpassed the cap and a lottery choice system activated. After applications surpass the limit, the USCIS will not accept any more candidates unless they are exempt from the annual cap. You can read more about annual caps, allocation rules, the H-2B lottery, and cap exemptions on the USCIS’s website.
H-2B workers can only come from certain eligible nations. Each year, the Department of Homeland Security (DHS) chooses those countries that are eligible and posts them on the Federal Register. Eligible nations were just updated in January 2019 – read more on the USCIS’s website. Interestingly, foreign nationals from countries like China, Russia, and India are not eligible to participate in the H-2B program.
Contact an Expert Austin Immigration Lawyer
U.S. companies and organizations often need to supplement their workforce with H-2B workers. These foreign nationals help the U.S. economy and boost companies’ ability to adequately handle both one-time and seasonal surges in business and staffing needs. Despite the usefulness of the program, it can be difficult for employers to navigate the application and sponsorship process. If you hope to hire H-2B workers, your best ally is a certified and experienced immigration attorney.
At Nanthaveth & Associates, our expert team works tirelessly to provide innovative and effective legal representation to our clients. We serve immigrants and employers across the Austin area. For your convenience, we offer the chance to talk with a lawyer for free – simply contact us for a complimentary initial consultation. At that point, one of our expert attorneys can sit down with you, discuss your needs, and guide your actions. Then, you’ll have all the information you need to move forward with us. We are ready and willing to help – contact us today!