In this article we explain how to obtain the H-2B visa, as well as the conditions and eligibility requirements. Also the process to apply for this category of visas for the USA and who qualify to obtain it.
Our immigration lawyers in Los Angeles are specialists in H-2B visas and can help you. For over 40 years, the prestigious law firm of Lluis Law has offered advice and legal representation to Hispanic workers.
What is the H-2B visa?
This visa allows skilled and unskilled workers to temporarily work in a wide variety of jobs. Agricultural workers are exempt from this visa and instead require the H-2A visa.
A US employer applying for an H-2B visa for a foreign worker must prove that there is a labor shortage in the US. The employer’s application includes a statement (Form ETA 9142-B-CAA-3), about his labor needs.
In it, the employer must justify the reasons for his request. The petitioner needs to indicate why
“My business will likely suffer irreparable damage if I cannot hire H-2B workers.”
In this sense, you need to previously obtain a Temporary Labor Certificate (TLC) from the Department of Labor (DOL).
This document should not be confused with the PERM labor certification, which is also issued by the DOL. Keep in mind that the process to obtain the FTA takes on average about 4 months.
The agency will then confirm whether or not there is a shortage of qualified workers in the US eligible for the requested job.
How many H-2B visas are issued annually?
Every year, the Federal Register provides a list of countries whose nationals can opt for the H-2B visa program. In Latin America there are 12 countries that can apply for the H-2B visa program, in addition to Spain.
For more information on countries whose citizens can apply for H-2B visas, visit the following link from USCIS.
This visa category has an annual limit, just like the H-3 visas for trainees or special visitors. Each year the government approves a limited number of these visas which is defined by the US Congress. The number of H-2B visas for 2020 is 66,000.
Half of these visas are issued during the first semester of the year and the other half in the second. If the half corresponding to the first semester is not fully delivered, the available visas are added to the second semester.
Jobs that qualify for an H-2B visa
Qualifying workers are neither professional nor have an academic degree. Although the most common temporary jobs in the USA are in the agricultural sector, there are others that offer this possibility.
Some of the sectors and economic activities with the highest demand for temporary workers include:
- Hotels and restaurants (including employment as a cook or kitchen assistant).
- Large commercial stores.
- Theme parks.
- Ski resorts (in winter season).
- Construction Industry.
- Popular and specialized fairs.
How to process an H-2-B visa in 2021?
Certain licensed companies specialize in recruiting and selecting personnel for American companies. Other times, the same companies directly search for their own staff or have job databases. Two of these reputable companies are Alliance Abroad and Exchange Abroad.
Thus, the H-2B visa application cannot be made directly by the beneficiary at the US embassy. You must previously have a sponsoring employer to file the petition for the foreign worker.
The employer files the foreign worker’s application to USCIS through Form I-129. This document must be accompanied by the Temporary Employment Certification for H-2B workers.
When the Citizenship and Immigration Service (USCIS) approves the employer’s application, the process continues. The alien worker can apply for an H-2B visa at the local US consulate or embassy.
After meeting the required requirements, the foreign applicant must wait for the response from the embassy. USCIS approval of the application to the US employer does not guarantee the worker’s visa. The consular officer has the discretion to approve or deny it.
H-2B visa requirements
After USCIS approves the employer’s temporary worker application, the second phase of the process begins. There are several eligibility requirements for the H-2B employment visa.
To process the H-2B visa, the following documents and conditions must be filed to the US embassy / consulate:
- Having received a job offer from the United States employer for the requested position.
- Have the application for the Temporary Work Certificate approved by DOL and then the application submitted to USCIS.
- Work only for the American employer who submitted the H-2B visa application. When a worker wants to change jobs, the new employer must apply for another H-2B visa.
- Apply electronically for the visa through form DS-160.
- Passport photography according to the specifications of the embassy website.
- Have a valid passport.
- Request an interview with the consular officer. That day the identification documents must be presented along with a copy of the approved form I-129. In addition to a copy of Form DS-160.
Employer Requirements for an H-2B Worker
To qualify for an H-2B temporary work visa petition, the employer needs to demonstrate that:
- In the United States, there are not enough citizenship workers available, willing, and trained to do temporary work.
- The employment of foreign workers will not adversely affect the working conditions and wages of American workers. In similar tasks or work areas.
- The need for the work of foreign labor is temporary. Regardless of whether work activities are permanent. The employer’s need for labor is considered to be temporary when:
1. It is just for once. For this, the employer must demonstrate that:
- He have not previously employed other workers to cover the service or work activity. Nor will he need other workers in the future to do the same job.
- It is a work activity that although in a certain way is permanent, is subject to conditions of a temporary nature. These conditions are what create the need for employment. For example, season of the year, events on defined dates and others.
Note. Seasonal employment is not considered when the work period for hiring foreign labor is unpredictable. Nor when it is subject to changes over time. Nor when it is made to cover the vacations that the company grants to its employees.
2. It is a need for maximum load. To claim the maximum load need, the petitioner needs to demonstrate that:
- It regularly employs permanent workers to carry out such work activities.
- He needs to temporarily fill the permanent workforce due to a seasonal labor demand. The extra demand for workers is short-term.
- Temporary workers who will be incorporated into company personnel will not be hired as regular workers.
3. It is an intermittent need. The employer must demonstrate that:
- He has not employed staff permanently (or full-time) for the operation.
- Occasionally (intermittently) he needs certain workers for some work tasks during seasons.
Advantages of the H-2B visa
Some of the benefits of the H-2B visa include:
- Travel to the United States and legally work for the American employer.
- H-2B visa holders can also freely enter and re-enter the US while the visa is valid.
- The benefits of this visa extend to family members. The foreign worker is allowed to be accompanied by his immediate relatives who must process an H-4 visa.
- The maximum period to remain in the USA for the H-2B visa holder is of up to 3 years with an initial period of 1 year. This visa allows you to request extensions that last one year at a time. At the end of the 3-year term, the worker must return to his country of origin.
To return to the USA it is necessary to wait a minimum of 6 months outside the country. Only then can you apply for a new H or L visa. Although also during your stay in the country, you may be eligible for adjustment of status. If you marry a US citizen or are petitioned by an immediate family member.
This benefit does not apply to those who do not live continuously in the US and have a temporary job of less than 1 year duration.
For more information on immigrating to the United States and obtaining US citizenship, call us right now. At Lluis Law’s immigration law firm, we have helped hundreds of Hispanic families get a Green Card.
How do family members of an H-2B visa holder benefit?
Alien workers with an H-2B visa who are married can travel to the USA with their family. The immediate relatives who benefit from this visa are the spouse and unmarried children under the age of 21.
Family members are granted an H-4 derivative visa that only entitles them to study but not to work.
H-2B visa processing time
There is no defined time for the processing of H-2B visas. However, after it is approved, you have to be very aware of notifications from the embassy. This is done through the email that the applicant indicated in the visa application.
Generally, the time it takes for any visa to be processed is 3-5 weeks. When the visa is approved, the passport that contains it is sent to the applicant’s address. In the same way as if the request is rejected.
How much does the H-2B visa cost in 2021?
The cost of processing the H-2B visa for the worker is $ 190. That is what the DS-160 visa application form costs. While the form I-129 (for the Fraud Prevention and Detection Fee) has a cost of $ 150.
This cost must be paid by the petitioner – employer. You can do it by check or money order.
H-2b visa for caregivers
The H-2B temporary work visa includes jobs as cooks and waiters in restaurants and hotel maids. Likewise, gardeners, workers, bricklayers, land and livestock keepers (shepherds).
Other occupations covered by the H-2B visa with jobs as meat, chicken and fish cutters in fridges. Construction site removers and other cleanup workers. Also assistants of entertainment activities in amusement parks.
In general, the H-2B temporary worker visa covers many areas. One of the most important requirements for the approval of this visa is the lack of national labor.
If you are an employer in California and need advice on alien worker requests, contact us. We can help you throughout the application process for this type of visa or in any other immigration matter.
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