ABCs of Immigration: H-2B (non-agricultural work) Visas

Once again Greg Siskind, immigration lawyer, lays out the basics of a visa program. I have already posted his introduction to the H-2A visa.
He can be contacted at Law Offices of Siskind Susser, P.C., Attorneys at Law; telephone: 800-748-3819, 901-682-6455; e-mail:
The H-2B visa is similar [to the agriculture-related H-2A visa], but is certification for temporary non-agricultural work. In essence, the visa is available when an employer can demonstrate that unemployed Americans are unavailable to fill the temporary position. The process is similar to the labor certification-based green card process except that the Department of Labor’s H-1B certification is not binding and the USCIS can independently decide to approve an H-2B status petition.

What kinds of jobs qualify for H-2Bs?
For a foreign worker to be covered by an H-2B visa, the job the employer offers needs three essential criteria:
• The job and the employer’s need must be one time, seasonal, peak load or intermittent;
• The job must be for less than one year; and
• There must be no qualified and willing U.S. workers available for the job.
When should an employer file for an H-2B visa?
The employer should file for H-2B status at least 60 days, but not more than 120 days before the worker is needed.
What are the steps an employer must follow to obtain H-2B certification?
The employer must go through an seven step process to obtain an H-2B visa:
1. The employer files a completed Form ETA 750 in duplicate to the local State Workforce Agency (SWA) covering the area of proposed employment.
2. The SWA informs the employer on requirements for recruitment, wage options, and working conditions offered and refers qualified candidates to the employer for interviews. The employer will also be required to advertise the position to demonstrate a lack of availability of American citizen and permanent resident workers.
3. The employer creates a recruitment report summarizing the results of the effort, including names and addresses of applicants, and reasons for not hiring particular interviewees. The employer must demonstrate that there are no immediately available citizen or permanent resident workers willing to work at the prevailing wage (or the actual wage paid by the employer if higher).
4. After an evaluation, the SWA will forward the applications to the appropriate National Processing Center (NPC).
5. The NPC certifying officer (CO) will review the applications. The CO will grant certification if he/she finds that qualified persons in the U.S. are unavailable and that the employment terms will not adversely affect the wages and working conditions of workers in the U.S. similarly employed.
6. The certifications/denials are given to the employer, and used to support a visa petition filed with USCIS. The Labor Certification Determination and the form I-129 are submitted to the USCIS.
7. The foreign potential employee must apply for a visa at his or her respective U.S. Consulate.

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