H2B Nonagricultural Job
The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file a petition on a prospective worker’s behalf.
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
- Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is:
- one-time occurrence – A petitioner claiming a one-time occurrence must show that it has not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
- seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is traditionally tied to a season of the year by an event or pattern; and of a recurring nature. Employment is not seasonal if the period during which the service or labor is needed is unpredictable; subject to change; or considered a vacation period for the employer’s permanent employees.
- peakload need – A petitioner claiming a peakload need must show that it regularly employs permanent workers to perform the services or labor at the place of employment; needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and the temporary additions to staff will not become part of the employer’s regular operation.
- intermittent need – A petitioner claiming an intermittent need must show that it has not employed permanent or full-time workers to perform the services or labor; and occasionally or intermittently needs temporary workers to perform services or labor for short periods.
H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL).
H-2B Cap. There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year. Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.
Worker Outside the US. Prospective workers outside the United States apply for visa and/or admission. After USCIS approves the petition, prospective H-2B workers who are outside the United States must apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry.
Worker Inside the US. Prospective workers who have been admitted and are legally in the US can apply for the change of status to the H-2B while remaining in the United States.
H-2B Eligible Countries List. H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated as eligible to participate in the H-2A program. The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Designation of eligible countries is valid for one year from publication.
Effective Jan. 18, 2014, nationals from the following countries are eligible to participate in the H-2B program: Argentina, Australia, Austria, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Grenada, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Panama, Papua New Guinea, Peru, The Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Thailand, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, Vanuatu.
Period of Stay. Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.
Family of H-2B Workers. Any H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.
Employment-Related Notifications to USCIS. Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:
- No show: The H-2B worker fails to report to work within 5 work days of the latter of:
- The employment start date on the H-2B petition; or
- The start date established by the employer;
- Abscondment: The H-2B worker leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
- Termination: The H-2B worker is terminated prior to the completion of the H-2B labor or services for which he or she was hired; or
- Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.