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The H2B visa is one option available to employers of foreign
non-professionals. As with other types of visas, the H2B may bring dependent family members to the U.S. Also, it is possible, in some cases, for employers to file blanket petitions, that is, one petition for several individual employees.
First, this visa is only available for work that is temporary in nature. There are four situations where work is considered temporary in nature for H2B purposes:
- Recurring seasonal need;
- Intermittent need;
- Peak-load need; and
- One time occurrence.
Note that this visa is not available for "temporary" agencies or other work placement agencies.
Second, the employer must establish that there are no unemployed U.S. workers willing or able to do the work. This is established through the states employment agency using a labor
certification process. However, this process should not be confused with the labor certification process for permanent
residency. The recruitment period here is only ten days and the recruitment efforts required are much less extensive.
EXAMPLE: Henrys Nursery grows trees and bushes for sale. As they only needed help during the growing season, they did not have any year round employees to work in the nursery.
Henrys Nursery has been unable to attract seasonal workers. Juan, a man visiting from Guatemala said that he would be happy to work if a work visa could be arranged. He also
said that he has many friends and family members in Guatemala that would like to work at the nursery. Mr. Henry contacted an immigration attorney who advised that, in this
situation, it may be possible to obtain a work visa for both Juan and for as many other aliens as may be needed to work during the growing season.
Permanent Residency
Under current law, employers submitting Temporary Labor Certification are precluded from submitting Permanent Labor Certification for the same alien
employee. Therefore, employees or their employers who believe they would be good candidates for Permanent Residency may instead consider applying directly for Labor Certification for Permanent Residency.
Filing the I-129 Petition:
USCIS Form I-129 consists of a basic petition and different supplements that
apply to the various visa categories. In order to petition for a temporary worker, the prospective employer or agent must file Form I-129, Petition for Nonimmigrant Worker, and the appropriate supplement with the
U.S. Citizenship and Immigration Services (USCIS) accompanied by the required payment, and initial evidence or documentation.
Once the petition is approved, the employer or agent is sent a Notice of
Approval, Form I-797. Approval of a petition does not guarantee visa issuance to an applicant. Applicants must also establish that they are admissible to the U.S. under provisions of the Immigration and Nationality Act (INA).
Applying for the Visa:
If the prospective worker (beneficiary) is outside of the country, he must
apply for a visa. After the USCIS has approved the I-129 and sent notice to the consulate in the beneficiarys country, the beneficiary must file a visa application with the consulate. Some aliens may be visa exempt. In those cases, the I-129 approval notice is sent to the port of entry (POE) where the beneficiary intends to apply for admission. For specific procedures on Visa Application Procedures, Required Documentation and Visa Ineligibility Waiver, please visit Visa Services at the Department of State.
If the beneficiary is already in the U.S. and is changing from one
nonimmigrant status to another, a visa is not required. However, a visa may be required if the beneficiary subsequently leaves the U.S. and wishes to re-enter.
Entry into the U.S.
Applicants should be aware that a visa does not guarantee entry into the
United States. The U.S. Customs and Border Protection (CBP) has authority to deny admission at the port of entry to any applicant who is inadmissible under INA, even if the applicant has a visa. Also, the CBP, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, CBP officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.
When to file:
Petitions should be filed as soon as possible, but no more than 6 months
before the proposed employment will begin or the extension of stay is required. If the petition is not submitted at least 45 days before the employment will begin, petition processing and subsequent visa issuance may not be completed before the alien's services are required or previous employment authorization ends.
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