The H2B Visa

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The H2B visa classification is highly in-demand as it enables unskilled laborers to work in the US. The H2B visa category is a precious resource which many US employers rely on to fill temporary or seasonal needs that would be very difficult to fill with US workers. For example, small resort towns may not be able to staff the many shops, restaurants and recreational outlets that are crowded with customers during its summer months without filling at least some of those temporary jobs with foreign workers.

Every year, only a limited number of H2B temporary visas are made available to workers. This numerical limit, also referred to as a “cap”is set by Congress at the beginning of every fiscal year (October 1). Caps determine the number of workers that can be issued a visa under a particular non immigrant classification in a given fiscal year to enter the US.

The overall cap is divided into two halves. Employees who are granted H2B status during the first half of the fiscal year may start work no earlier than October 1. Employees who are granted H2B status for the second half of the fiscal year may start work no earlier than April 1.

The government’s decision to divide the cap was to make sure that all of the H2B visas were not used up in the winter season, which will leave no visas left for summer. Unfortunately, since H2B petitions may be filed no earlier than 120 days before the employer has a need for the seasonal employee, the practice of dividing the cap has resulted in a very complicated and time sensitive petition process.

As far as the H2B visa classification is concerned, timing is everything. There are limited visas available per season and the visas are in high demand. Qualifying US employers are eligible to file the petition only 120 days before October 1 (for winter) or April 1 (for summer) and the cap is usually reached very soon after employers qualify to file. Apart from this, the employer is required to complete many other important key regulatory requirements before actually qualifying to file, and finally it becomes a race for H-2B visas.

Steps an H2B Employer Should Take

The employer has to conduct recruitment in order to prove to the Department of Labor that there are no qualified US workers willing or able to fill the job offered. The employer should file an application with the Department of Labor and furnish copies of the recruitment conducted. Then, the DOL should certify that there are no US workers available to do the job and that the proposed H2B employment will not affect the wages and working conditions of similarly employed US workers. Only after the Department of Labor certifies the employer’s application, the employer becomes eligible to file the H2B petition with the USCIS.

Once eligible, the employer should prove that it meets the requirements to sponsor a worker(s) for H2B status. The employer must establish that it is a US employer with a job opportunity located within the US and that the job is temporary. The employer can’t simply say that the job is temporary. It has to be proved that the job is temporary, based on a seasonal or temporary business need.

Adding to this, the employer should establish that the position is full-time. Furthermore, the period of the employer’s need must be one year or less, although there may be extraordinary circumstances where the temporary services or labor can last longer than a year.

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