An H-2 visa is a temporary worker visa that is intended for skilled and unskilled laborers but not for professionals. It is a petition-based visa, which means an employer will be required to submit a request in order for an individual to obtain a H-2 visa.
There are two types of H-2 visas, a H-2A visa and a H-2B visa. The H-2A visa permits a foreign national to enter the United States to work in seasonal agricultural jobs. The H-2B visa permits foreign nationals to enter the United States to work in seasonal non-agricultural jobs. Both types of H-2 visas are different from the H-1B visa, which is reserved for professional workers with college educations.
Who May Qualify for a H-2B Visa?
The H-2B visa is available only to employers of foreign workers. It is available only for work that is temporary in nature. For H-2B visa purposes, temporary work means:
- Work that is not in the agricultural field;
- Work is recurring and is a seasonal need;
- The work is intermittent, or as needed; and
- There is a peak-load need for the work.
Employers requesting this type of visa must prove that there are not unemployed United States workers that are willing to fill the available position. There are 66,000 H-2B visas provided during a fiscal year.
The law divides the fiscal year into two parts, allowing 33,000 visas to be provided during each half of the year. Often, this does not meet the demand for visas, so if an individual needs to obtain a H-2B visa, they should seek an attorney’s help as soon as possible.
There are a number of qualifications for a H-2B visa, including:
- The applicant is required to come from a country on the list of current participating countries or meet the criteria for an exception;
- The applicant must have an offer of employment from a U.S. employer to perform temporary work, which may be seasonal, one time, peak load, or intermittent;
- The applicant must have the background to qualify for the job they have been offered;
- There must be no other qualified United States workers willing or able to take the job. The employer must have a temporary labor certification; and
- The applicant must intend to return to their home country when the visa expires.
Temporary employment is a very important part of the H-2B visa application. The employment must have a specific beginning and end. Employment can be considered temporary if it is a one-time occurrence or fulfills a need that is intermittent but not a regular need of the employer.
There are some types of employees who commonly obtain H-2B visas. These include:
- Entertainers;
- Landscapers and groundskeepers;
- Forest and other conservation workers;
- Maids and home cleaners;
- Amusement recreation attendants; and
- Waiters and waitresses.
It is important for a H-2B visa applicant to be aware that the work they are traveling to the U.S. for must be legal or they could be deported and ineligible for future visas to the U.S. For example, although marijuana may be legal in states such as Washington, Colorado, and California, it is still on the list of controlled substances and working in marijuana fields may be considered a form of drug trafficking.
What are the Key Elements of the H-2 Visa?
There are several key elements of a H-2 visa. These include:
- The visa permits the holder to work legally in the United States, but for relative short periods of time;
- The visa holder’s employer must guarantee payment of wages for at least three-fourths of the contract period. The wages must be at or above the local, state, or federal minimum wage or the prevailing wage rate, whichever is highest; and
- The employer of the visa holder must pay for or reimburse them for transportation and visa costs as well as providing worker’s compensation insurance.
There are also important considerations regarding a H-2 visa applicant also applying for a H-4 visa to bring their family with them. There are quota limitations for the H-4 visa as well.
Additionally, the consular officer who reviews the application may be concerned why the applicant would uproot their family for a short job period. It may cause suspicion that the individual does not intend to leave the United States.
If an individual does obtain the H-4 visa for their family members, those family members are not permitted to work. However, they may qualify for a work visa themselves. The H-2B visa holder and their family members may travel to and from the United States or remain in the U.S. until the visa expires.
How Long Is the Duration of a H-2B Visa?
An H-2B visa is limited to employers that need to fill temporary positions. The maximum duration of the H-2B visa is one year. However, that period can be extended up to 3 years in some circumstances.
How Do I Obtain a H-2 Visa?
In order to obtain a H-2 visa, an employer must submit a temporary labor certification application to the Department of Labor. After receiving the temporary labor certification, the employer is then required to file Form I-129, or the Petition for Nonimmigrant Worker Form, on behalf of the prospective worker. The H-2A and H-2B visas require that the applicant have a job offer from a qualified employer in order for the visa to be granted.
H-2 visas are employer specific. This means if the holder of the visa loses their job or quits their job, the visa will no longer be valid and the visa holder will be required to return to their country.
The maximum amount of time that a holder of a H-2 visa can remain in the United States is 3 years. If the H-2 visa holder has been in the United States for up to 3 years, they must leave and remain outside the U.S. for an uninterrupted period of 3 months prior to reapplying for another H-2 visa.
If an individual is applying for a H-2 visa, it is essential to apply for the visa as quickly as possible each year. There are yearly caps on the number of people who can enter the United States on a H-2 visa. Once the yearly quota is full, no more H-2 visas will be issued.
Do I Need a Lawyer to Apply for a H-2 Visa?
It is important to have the assistance of an immigration attorney for any H-2 visa issues. If you or someone you know needs assistance with a visa application, they should contact an attorney to ensure their application is timely and complete.
Your immigration lawyer will walk you through the process of obtaining a H-2 visa as well as help you determine whether you qualify for a H-2A visa or a H-2B visa. In addition, you may be able to bring your spouse or minor children with you while you work in the United States. If you desire to do so, a lawyer will be able to assist your family with applying for a H-4 visa.
If you are an employer who is seeking employees using H-2B visas, it is important to have the assistance of an attorney to ensure the process is complete and correct. It may require patience on your part, as the visa process may be slow. Having an attorney’s assistance will ensure the application is completed properly the first time, ensuring your employees are available to help when needed and you do not miss obtaining visas because the quota for the year is already fulfilled.
