Sindell Law Offices E-Min Newsletter (Vol. 7) - English Article #30

    Now that H-1b visas are now gone until next year, we are featuring several articles about alternative visas for clients to consider. The H-2B nonimmigrant work visa may be used in various situations. Here are some hypothetical examples of how an H-2b could be used.

-          A new restaurant from Japan opens and the restaurant needs chefs from Japan to train U.S. workers for a limited period of time.

-          A travel agency needs guides for a special event which is seasonal and will last several months.

-          A new hotel is opening and the hotel needs workers from Japan to train US workers for a specific period of time.

-          A contract for a specific software project is made and a representative from Japan needs to come to the U.S. to set up and start the project before handing it over to US workers.

The H-2B nonimmigrant work visa provides a method for US employers and agents to obtain the services of foreign nationals to fill temporary needs for additional workers. The annual cap on this type of visa is 66,000. Recently, this visa has become quite popular in the hospitality industry.

The length of the stay on an H-2B visa is limited by the duration of the employer's temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years. However, extension applications are closely scrutinized. Either skilled or unskilled workers may be employed on an H-2B visa. The only workers who are specifically excluded are 1) foreign medical graduates seeking to perform work in medical fields and 2) agricultural workers. The visa is also often used for entertainers and athletes who do not meet the requirements of the O and P visa categories.

US employers are allowed to petition for temporary H-2B workers. A US agent may also file petitions for self-employed aliens or where they are multiple employers, and cases involving foreign employers.

When the H-2B worker is self-employed, there must be a contract between the agent and the worker specifying the wages and terms of employment. The agent must also provide a complete itinerary of the planned employment. When numerous employers are involved, the agent must provide the dates of the proposed employment, the name and address of the employers, and the locations where the work will be performed. When a foreign employer is petitioning for the services of an H-2B worker, the agent must submit the employment contract between the worker and the employer, as well as evidence of the agent's authority to act on behalf of the employer. In this situation the agent is the person who is authorized to accept service of process should the foreign employer be subject to sanctions under US immigration law.

The most significant restriction on the H-2B category is the requirement that the need for the foreign worker is temporary. The Department of Labor recognizes several situations in which there is a temporary need for workers:

Both the job itself and the petitioning employer's need for the specific alien must be temporary. In the language of the regulation, an H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers. Temporary services or labor under the H-2B classification refers to any job in which the petitioner’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary

1. Recurring seasonal need

The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature, e.g., ski instructors during the winter season. The petitioner shall specify the period(s) of time during each year in which it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees

2. Intermittent need

The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods

3. Peak-load need

The petitioner must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation

4. Need based on a one-time occurrence.

The petitioner must establish that it has not employed workers to perform the services or labor in the past and it will not need workers to perform the services or labor in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

It is difficult to fufil the H-2b requirements since the employer must promise to employ the worker for a limited period of time, and the employer must verify that its need for the worker is temporary.

Prior to filing an I-129 (USCIS) petition for an H-2B worker, a process similar to that required for permanent labor certification (for Green Cards) must be completed. The petitioner files a Form ETA-750 Part A with the appropriate state employment service office and completes required recruiting. Generally, the required recruitment is less than that required for permanent cases, and H-2B labor certification applications are handled on a faster track than permanent labor certifications. DOL will certify the application or issue a statement that no certification can be made. The employer files the certification and Form I-129 with BCIS. The DOL certification or denial of certification is not appealable and is a recommendation only. An H-2B visa petition can be denied even if there is a certification from the DOL.

The USCIS filing must be accompanied by: (a) an approved labor certification, or a notice that certification cannot be made; (b) countervailing evidence to rebut any notice by the Secretary of Labor that certification cannot be made; (c) documentation that the alien qualifies for the job offer as specified in the application for labor certification; and (d) a statement describing in detail the temporary situation or conditions that make it necessary to bring the alien or aliens to

Two one-year extensions of stay may be granted to H-2B temporary workers. Each Form I-129 petition for extension must be accompanied by a new labor certification or notice that certification cannot be made. An H-2B alien who is dismissed from employment for any reason by the employer before the end of the approved nonimmigrant stay must be provided return transportation costs abroad by the petitioner.

The maximum period for which an alien can be admitted to stay in the United States in the H-2B category is three years. After having spent three years in the United States, an alien may not seek extension, change of status, or be readmitted to the United States under the H or L nonimmigrant classification unless such alien "has resided and been physically present outside the United States for the immediately prior six months."