H-2B Visa, Temporary, Seasonal Workers

This is a non-immigrant visa program for temporary seasonal workers who are not agricultural workers. It is geared toward unskilled workers without college degrees, but could be for skilled worker, if the seasonal demand can be established. Each year an annual cap on the number of US entrants is regulated by the USCIS. A "season" is often tied to a specific season of the year by an event or pattern of a recurring nature. And, the USCIS analyzes to verify the work position is (a) need based on a one-time occurrence, (2) a recurring seasonal need, (3) an intermittent need or (4) a peak load need. It is similar to the H-1A temporary seasonal agricultural worker program, but with some significant differences. And this visa will not lead to permanent residency (green card). Some of the common industries that utilize this visa are;

• Resort & hotel business,
• Lawn & landscape industry,
• Plant nursery business,,
• Theme parks business,
• Tourist attraction facilities,
• Carnival & fair business,
• Cruise ship industry,
• Snow removal business,
• Construction industry,
• Ski resort industry,
• Restaurant industry,
• Retail sales industry in resort towns, and
• Athletes and entertainers who cannot qualify under the O and P visas.

Employer Must Show

• It is a U.S. company not a foreign company operating in the U.S.,
• Its need and the job is a one time, seasonal, peak load or intermittent, for less than 1 year,
• There are no qualified U.S. workers willing to do the job, and the employer will pay the higher of the pay offered or the Prevailing Wage Rate,
• There are not enough U.S. workers available who can fulfill its requirements at the location and time needed,
• Temporary employment of this kind will not adversely affect the wages and working condition of similar employed U.S. workers,
• The offered job is a temporary, seasonal, non-agricultural job, for less than 1 year duration,
• It first obtained a Temporary Labor Certificate from the U.S. Department of Labor (DOL),
• It offers the same wage to the foreign worker that it would pay a U.S. worker. The higher of the Prevailing Wage or the minimum federal or state wage,
• It will pay the reasonable cost of the worker (not his spouse & children) to return to its foreign home after fulfilling the work period,
• It will provide worker's compensation insurance for the worker.

Eligible Worker Home Countries

Workers from some 63 countries are eligible to participate in this program. There are some exceptions for workers of non- participating countries. But they should not be listed on a petition with participating country workers. Foreign medical graduates seeking to perform work in any medical field are excluded. Currently, these countries are:

• 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

Period of Stay and Renewals

The visa is valid for 1 year and can be renewed year by year for up to 3 years. However, renewals are tough to obtain. Each renewal requires re-certification. After 3 years, the worker must depart the U.S. for 3 months before being eligible to apply again. Previous time spent in the U.S. in another H or L classification counts toward the 3 year maximum stay. The worker can arrive 10 days before the work is to start and must depart within 10 days thereafter.

Spouse and Children

A spouse and children under 21 can also enter under the H-4 visa classification. They cannot work but they are permitted to attend school.

Filing Procedure

• U.S. Employer, agent or recruiter files an Application for Alien Employment Certification, in duplicate, with the state workforce agency (SWA) where the employment at least 45 days before when the worker is needed,
• Then, after conduct a recruitment for U.S. workers satisfactory to the (SWA), the employer must complete a recruitment report, forward it to the (DOL) National Processing Center whose certifying officers will hopefully grant certification. Unfortunately, if denied, there is no appeal process. Appeals must be filed with the USCIS.
• Then, the U.S. employer submits to the USCIS a copy of the Temporary Labor Certificate along with a USCIS Form I-129, Form I-129 Supplement, Letter of Support from the employer accompanying documentation and all required filing fees,
• Upon approval and the USCIS forwarding of the approval to the appropriate U.S. Embassy or Consulate (if the worker is overseas) and notification to the worker, the worker shall apply for its H-2B visa.

Employer Notifications to the USCIS

After approval the employer must notify the USCIS if;

• The worker is a no show,
• The worker arrives and then absconds without notice to the employer,
• The worker is terminated with or without cause,
• The workers job is terminated 30 or more days before the completion date.

The employer faces penalties for failure to make the required report.