Temporary Non-agricultural Workers Under The H-2b Visa Classification
Overview
The H-2B non-immigrant foreign worker visa program is essential for U.S. businesses that want a legal workforce but cannot fill temporary or seasonal job openings with able, willing, qualified, and available U.S. workers to do the work. It is available to U.S. companies who need non-agricultural services on a temporary basis when qualified and willing American workers are not available.
The petitioner’s need for the foreign national worker must be temporary, in that the need must either be a one-time need for services, a seasonal need, a peak load need, or an intermittent need. These workers cannot displace U.S. workers capable of performing these services and cannot adversely affect the wages and working conditions of U.S. workers.
The H-2B program has a “Cap” of 66,000 visa per fiscal year. The Cap is divided into two allocations of 33,000 each—with the first 33,000 visas available for work with employment start dates between October 1 and March 31, and the second allocation for work starting between April 1 and September 30. Filing an H-2B application does not necessarily guarantee a visa. Cases are randomly selected for processing by letter groups. Those applications placed in the earliest groups (A-C) are the most likely to be processed before the annual cap has been reached. Once the Cap is reached, the employer must wait until the next fiscal start date to reapply.
H-2B classification may only be obtained in increments of one year or less (usually 10 months or less), with each new increment requiring a new labor certification and petition. The maximum H-2B stay is three years.
Obtaining H-2B temporary foreign workers requires a 3-step process:
- Applying for a “labor certification” with the U.S. Department of Labor (“DOL”);
- Petitioning the USCIS for visa approval; and
- Arranging through an American Embassy the foreign nationals’ visas and entry into the United States.
Three Step Process
- H-2B LABOR CERTIFICATION
Obtain a Prevailing Wage Determination (PWD)
(Employer must apply for and obtain a prevailing wage 34-60 days before the filing period)
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File a State Workforce Job Order AND ETA9142B
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U.S. DOL Randomly Assigns Your Case a Group Letter (A-F)
The earlier the Group, the more likely to be certified in time to make the H-2B Cap.
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Chicago NPC reviews the H-2B application and job order for compliance within 7 business days and informs the employer if it will accept the application and/or job order
U.S. DOL Issues a Notice of Deficiency (NOD) OR a Notice of Acceptance (NOA)
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IF NOD, Employer responds through online portal to correct all deficiencies
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US DOL issues Notice of Acceptance (NOA) and Recruitment Instructions
(15 days)
- Contact all former US workers laid off within 120 days of start date who were employed in the previous year and try and solicit their return to the job.
- Contact the bargaining representative for the position offered.
- Post a notice of H-2B filing for 15 business days in two conspicuous places at the worksite.
- DOL will post the job on its own website.
- The DOL officer can purposefully or randomly subject the case to additional recruitment efforts
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Employer Completes Recruitment and Submits Recruitment Report with US DOL
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US DOL Reviews and Certifies H-2B Application
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- NON-IMMIGRANT VISA PETITION
I-129 filed with U.S. Citizenship and Immigration Services
1 to 2 months processing time
Premium Processing available – 15 day processing time
Approved I-129 Petition for H-2B Worker(s)
- CONSULAR PROCESSING
USCIS forwards notice of the approval to the U.S. Consulate abroad
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The worker(s) will apply for their H-2B visa at the U.S. Consulate
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The H-2B worker(s) travels to the U.S. to work for the employer pursuant to the terms of the certified H-2B application
Kuck Baxter can assist your business in all aspects of the H-2B visa process. Call today to discuss how you can start using H-2B visa holders to meet your labor needs.
