 "H-2B"
Essential Workers
The H2-B category is generally used for non-agricultural
unskilled or semi-skilled workers, or for skilled workers whose
training is vocational rather than academic, such as landscapers and construction
workers. There are many restrictions on the use of this category and
the application process is complex. It is not a solution for workers
hoping to work in the United States indefinitely. However, it is
useful to employers in many industries who need to fill acute,
short-term labor shortages involving multiple openings.
All H-2B applications begin with the Department of Labor. The
employer must show that there are no U.S. citizens or permanent
residents available for the job. This is the same process that is
used for permanent labor certification, except that it is
fast-tracked. The employer must also pay the prevailing wage. Form
750 must be filed at least 60 days but no more than 120 days before
the employment begins. The job must be advertised for three
consecutive days and a job
order is placed in the interstate system. The recruitment period is
just ten days. The employer must offer the prevailing wage. It is
not necessary to identify the beneficiaries at this stage.
The employer must also prove that the job
is temporary. The law says the temporary need may not last more than
one year. In reality, ten months is the outside limit that
will usually be approved. The temporary need must be one of the
following:
- Seasonal, such as ski instructors, landscape laborers,
deckhands on seasonal fishing boats, or construction workers in
northern parts of the U.S.;
- A one-time occurrence, such as coordinating a company's
transfer of its corporate headquarters, or clean-up workers
following the World Trade Center attack;
- A peakload occurrence, such as sales clerks during the
Christmas holidays, or home health aides during a flu outbreak;
- An intermittent event, such as electrical linesmen to repair
damage following an ice storm, or phone book distributors.
Once the DOL certifies the Form 750, an I-129 petition must be
filed with Citizenship and Immigration Services (CIS) by the
employer. Premium processing is available in urgent cases. The I-129
may request consular processing, port of entry notification, a
change of status to H-2B, or an extension of stay in H-2B status. Except for Canadian citizens, H-2B beneficiaries outside the U.S.
must apply for an H-2B visa once the petition is approved.
H-2B workers must have a temporary intent, not immigrant intent.
They must have a foreign residence they have no intent to abandon.
An H-2B visa may be denied if the foreign worker has taken steps
towards permanent residence. If an H-2B worker has spent three years
in the U.S., he must remain outside of the U.S. for six months
before readmission in H-2B status.
There are 66,000 H-2B visas available each year. In recent years
this number has been exceeded, so H-2B visas became unavailable.
Under a new law, half the visas are available beginning October 1 of
each fiscal year, and half are available beginning April 1. This is
so there are visas available during the summer, when many H-2B
workers such as landscapers and hospitality workers are needed. The next quota will be available for the
first half of fiscal 2008, which begins October 1, 2007. Employers should begin the process of
applying for these visas 120 days in advance, i.e., June 1 2007.
For the last several years, Congress has re-authorized a bill
that exempts "returning workers" from the quota. A returning worker
is any person who has been accorded H-2B status at any time during
the last three fiscal years. This law has not as yet been
re-authorized for fiscal year 2008.
The H-2B is the most complex and time-sensitive temporary
work visa. We can help.
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