H-2B Temporary Non-Agricultural Worker

The H-2B visa is for individuals coming to the United States to work in temporary agricultural positions. A U.S. employer who is not in agriculture can file the I-129, Petition for Non-immigrant Worker on behalf of the worker. To prove eligibility for an H-2B visa, the petitioner (the employer) will need to prove the following by submitting credible documentation that:

  • The need for the worker is temporary whether through a one time need, seasonal need, to meet the demand for more workers during a peak time or for an intermittent need;
  • There are insufficient U.S. workers who are willing and able to do the temporary work;
  • The H-2B workers will not negatively affect the wages and working conditions of similarly situated U.S. workers;
  • There is an approved temporary labor certification from the U.S. Department of Labor, filed with the petition.
  • The worker is from one of the H-2B eligible countries. You may find the list at the uscis.gov website.

Foreign or Temporary Labor Certification

Generally, the employer must have the approved temporary labor certification (LC) from the Department of Labor (DOL) and then file it with I-129 Petition. The LC is required for the H-2B visa but may be waived for certain emergency circumstances. For an LC to be approved by the Department of Labor, the department verifies that:

  • There are insufficient U.S. workers available to perform the temporary and seasonal agricultural employment; and
  • The employment of H-2B workers will not adversely displace similarly situated U.S. workers.

Applying Within the United States

If you are located in the United States, the employer can submit the Form I-129 to change your status in the United States. The employer would attach the evidence to the petition and it would then be processed by the USCIS. The USCIS would make a decision on the application and send the decision notice to the employer. After approval, you would be able to begin work as long as the employer properly processes your employment paperwork, which includes the I-9 process. During the process you and the employer should be on the look out for any requests for more evidence, called RFEs. Failure to respond to these may cause a delay or denial of your application. This is where my services at ST Law Office can be pivotal to the success of an immigration visa application.

Before applying for the visa through this process, you should should make sure there are no problematic issues. Each of the pieces of this process can get complicated. If you miss something or make mistakes, it could mean a delayed process or even a denial. It is important to tread carefully and be meticulous through this process.

Applying at the Embassy

If you are outside of the United States, and the USCIS approves the petition, you will apply to the embassy in your country for the visa. The employer would need to forward the approval notice to you and then you would need to follow embassy instructions to apply for the non-immigrant visa. The embassy in your home country schedules the visa interview. The officer will review all documentation and your application at the interview and inform you of the decision at the interview.

If approved for the visa, you’ll be given a year, which can be extended for the maximum period of 3 years. After 3 years you must depart and spend 3 uninterrupted months outside of the United States before reapplying for H-2B status. In addition, within the three (3) year limitation, each extension request must be accompanied by an I-129 petition and new labor certification. You are permitted to take your spouse and child(ren) with you to the United States as well. Your spouse would be eligible for an H-4 visa. Family members with H-4 status are not eligible for work authorization. There is a numerical cap on who can receive the H-2B visa, which is a total of 66,000 per fiscal year. Thirty-three thousand (33,000) H-2B visas are authorized in the first part of the fiscal year from Oct. 1st to March 31st and then another 33,000 in the second part of the year from April 1st to September 30th.

When considering whether to go through with this type of visa application, it is important to take other circumstances and factors into consideration. Failing to do this may cause complications during the application process. For instance, any facts that involve previous denials, past immigration and criminal violations, previous marriages that involved filings, entry with other types of visas, tax issues, visa overstays, and previous employment in the United States can be just as important as the basic eligibility criteria. A single criminal violation, whether a misdemeanor or more serious, or an immigration violation can lead you to be inadmissible to the United States, which may require additional steps to getting the visa, such as a waiver.

It is important to consult an experienced immigration attorney to assist you with your case. An attorney will assist with applying for the temporary labor certification, preparing the petition, assist with gathering evidence, and advocate vigorously for you during the process. Here at ST Law Office, I have dedicated my practice solely to immigration matters and have diverse experience surrounding these issues. I vigorously advocate no matter how simple or complicated the matter. Don’t hesitate to call us at 561-405-4889 or to schedule your initial phone, online or in-person consultation now.

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