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H-2B Temporary non-agricultural worker visas

What is an H-2B visa?
It is a visa that allows foreign nationals from certain countries to accept temporary non-agricultural
employment in the US. The temporary workers are allowed upon a certification of the US Department of
Labor that there are no willing, able, and qualified US workers available during the period of
recruitment. There is an annual cap or limit on the number of H-2B visas issued each year: only 66,000
are issued.

The H-2B visa is valid for one year when the work is seasonable and intermittent. It can also be extended
for up to one year, but all extensions must not exceed three years. When the H-2B visa holder seeks to
apply beyond the three-year limit, the applicant must leave the US and stay for three months outside
the US. All H-2B visa holders who are re-applying for a new visa are not counted in the cap if their last H-
2B visa was issued within three years from the date of their latest application. The dependent spouse
and children of the H-1B visa applicant can enter the United States on an H-4 visa.

What are the requirements for an H-2B visa?
The employer must petition for the H-2B visa on behalf of the workers. The employer must present:

  • Prevailing Wage Determination from the Department of Labor (ETA 9141) to certify the
    allowable wage rate for the proposed temporary workers.
  • Temporary Labor Certification for non-agricultural employment (Certified ETA 9142) attesting
    that there is no labor dispute involving the temporary work and that no US workers will be
    displaced when the application for H-2B visas are issued.
  • State Worker Agency certification that there are no US workers who are willing to do the
    temporary work in the area where the temporary work will be performed. There must be proof
    that recruitment of US workers was first performed but not enough workers to meet the
    temporary need were recruited.
  • An expression of a temporary need based on one-time occurrence of seasonal, intermittent or
    peakload need of their business.
  • H-2B Visa number available
  • Offer of full-time employment during the temporary period for the visa applicants
  • Evidence that the worker is a citizen of the country designated on the H-2B countries list

What documents must the employer present?
The employer must present:

  • Basic information about the company that is sponsoring the application of the H-2B worker.
  • A description of the duties of the job, the salary offered, the hours of work, the period of
    employment, the job requirements and whether on-the- job training will be provided
  • Copies of the academic credentials work experience or expertise of the foreign national such as
    resume or curriculum vitae, diplomas, certificates or other proof of a bachelor’s degree,
    employment history.
  • Biographic pages of the passports of the foreign national, his or her dependent spouse and
  • Evidence of temporary need (a need is “temporary” if it does not exceed one year).
  • Evidence that the hiring of temporary workers will not displace US workers who are available to
    perform the services or work.
  • Evidence that the H-2B employment will not adversely affect the wages or working conditions of
    US workers.

What kind of temporary work or employment falls under the H-2B visa category?
Any work, skilled or unskilled, as long as it is temporary work can fall under the H-2B visa category.
Historically, most workers issued H-2B visas are low-skilled workers such as landscapers, laborers, hotel
cleaners, housekeepers, cooks and construction workers.
Other workers that fall under this category are those who provide services as exhibitors at international
fairs or expositions, nannies or caregivers for the injured, the disabled or the elderly fall under this
category. Professional athletes and entertainers who do not qualify for O-1 or P-1 status may apply
under H-2B category. These include circus performers, animal trainers, technical and support personnel
involved with a performance or sports team.

What types of temporary work are covered under the H-2B category?
The temporary work may be a one-time occurrence such as when new technology is being introduced,
or when a building is being constructed, specialized workers may be necessary. In these cases, the need
is a one-time occurrence because once the building is constructed or once the technology has already
been introduced, the worker’s expertise will not longer be necessary.
Seasonal work is that type of work that is usually tied to a season of the year or by events or patterns
that recur in nature. Thanksgiving and Christmas holidays offer a seasonal type of work for workers who
sell Christmas trees or dress turkeys. Spring break or summer season require temporary workers at
hotels or resorts. Musicians who provide concerts at a park during the summer are an example of
seasonal workers.
Peakload work is also temporary in nature. One example is the need for construction workers and clean-
up crew after the devastation of a destructive hurricane. Another example of peakload work is for
typists and clerical staff to meet the need for processing income tax returns filed at or around April 15.

The determination of whether certain types of jobs fall under the H-2B category is a complex legal
question. You will need legal advice and legal assistance in documenting the temporary need for foreign
workers. You will need the expertise of immigration lawyers to express and articulate your business

needs for temporary workers. Call us and talk to any of our experienced immigration lawyers at Lluis
Law. We are willing to help you.