H2B Visa Qualifications and Eligibility Requirements

The US Employer

The H2B employer must be a US employer with a lawful presence in the US, having an IRS tax ID number, and a legitimate job opportunity in the US. The employer is considered the “Petitioner” in the H2B application process, which means that it is the employer who sponsors the employee for H2B status. The employer is required to pay all appropriate fees that is associated with filing, including the petition fee.

The US employer can be either a company or an individual. If the employer owns a legitimate business corporation that is not dependent on his/her presence to operate it, the company can be the petitioner. However, if the corporation was formed strictly for the purpose of obtaining a visa, it will be too difficult a process to wade through.

The Job Offer

An H2B position sought for must be an offer of full-time non-agricultural employment. Apart from this, the job should be seasonal, intermittent, a peak-load need, or a one-time occurrence. Though the definitions of seasonal, intermittent, peak-load and one-time occurrence employment have quite a bit of overlap, in basic concept, they are all examples of employment that is temporary, not permanent.

Conditions of Employment

If a worker fails to report for work or is terminated prior to the completion of the work for which he was hired, or flees the work site, the H2B employers are required to notify DHS. Employers are prohibited from passing the cost of recruiter fees charged by a petitioner, agent, facilitator, recruiter, or similar employment service, to prospective H2B workers as a condition of an offer of H2B employment. Per the rule, employers must pay for transportation and visa expenses of H2B employees and shifting these costs to the employees would effectively bring them below the minimum wage in their first week of employment.

The H-2B Employee

The H2B visa applicant does not have to meet many specific requirements in order to qualify for the visa category. There are no degree or other requirements connected with obtaining an H-2B visa, and anyone with an approved H-2B petition can apply for a visa at the US consulate in his/her home country.

To get an H2B visa, the individual must show that he/she has a specific job offer from a US employer to perform temporary, non-agricultural work inside the US and that he/she plans to return to his/her home country once the visa expires.

Inadmissibility

Some people are not allowed into the US at all because the US government has decided that they possess certain traits that are undesirable or may threaten the health and safety of US citizens. These people are considered to be inadmissible and are not allowed to enter the US. Visa applicants who think they fall into any of the categories of inadmissibility are best advised to contact a lawyer.

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