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"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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