Visa & More: What is the H-2B Visa?

In the previous newsletters, we gave you a few questions and answers from our daily interactions with our customers in this section. Today, we would like to inform you about a specific work visa, the H-2B visa, and some changes in the student visa application process.

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The H-2B Visa is a temporary work permit for people in non-agricultural professions. To employ a foreign worker, the US employer has to prove that n o American worker is available for the position.

QUESTION: To what kinds of jobs does the H-2B visa apply?

- The job offer must be for a one-time assignment, a season or a short-term higher work load.
- Employment must be limited to one year.
- There must be no US workers qualified and willing to do the job.

QUESTION: When should the employer submit the H-2B petition?

The employer should submit the petition at least 60 days before the worker is needed, but no earlier than 120 days before.

QUESTION: What steps does the employer have to take for the H-2B petition?

There are 7 steps to the H-2B petition process for the employer:

1. The employer submits the completed ETA form covering the area of proposed employment to the local State Workforce Agency (SWA).

2. The State Workforce Agency informs the employer about employment requirements, wages and job interviews and refers applicants to the employer for interviews.

3. The employer writes a recruitment report summarizing the recruitment efforts, states the names and addresses of the applicants and explains why he will not hire them. He must demonstrate that there are no immediately available US workers or foreign workers with a permanent residence in the US who are willing to work at the prevailing wage.

4. After an evaluation by the SWA, the applications will be forwarded to the National Processing Center (NPC).

5. The certifying officer at the NPC will review the applications and will grant certification if he comes to the conclusion that no qualified American workers are available and the proposed working conditions will not adversely affect the wages and working conditions of American workers in similar positions.

6. The employer will receive either a denial or a certification that he may use to submit a visa petition to US Citizenship and Immigration Services.

7. The potential foreign employee applies for a visa at his or her local US consulate.

QUESTION: How long is the H-2B visa valid?

It depends on the length of employment how long you may stay in the US on the H-2B work visa. The visa can be extended in one-year increments to a maximum validity of three years. However, USCIS often denies H-2B extensions because they doubt that the employment has a time limit.

QUESTION: Who qualifies/doesn't qualify for the H-2B visa?

Both trained and untrained workers may be employed with the H-2B visa. Usually this visa category applies to artists and athletes who don't qualify for other visa categories such as O and P. Lately the H-2B has also been popular among the staff of hotels and restaurants. Excluded from this category are only workers from the medical and agricultural field.

QUESTION: What documents does the employer of an H-2B employee need?

- contract between employer and employee stating the wages and working conditions
- itinerary of the entire employment
- in case there are numerous employers: the dates of the proposed employments, names and addresses of the employers, a list of all locations where the work will be performed.

QUESTION: How many H-2B visas are issued each year?

Up to 66,000 H-2B visas are issued each year. One half is issued for an employment start date in the first half of the fiscal year, the other half for the second. The visas for accompanying family members (H-4) are not included in those 66,000. In addition, the cap only applies in the first year and not for employees who are returning for seasonal work or extensions.

QUESTION: What are the employers obligations in an H-2B case?

The employer is required to pay the employee according tot eh prevailing wage and in case an employee is terminated earlier than planned, has to pay for return transportation.

QUESTION: May an employer exchange workers on an H-2B?

Yes, but only if the petition was approved for an unnamed employee or a group, or if the position does not require any education, training, or experience. The substitutions can be made at a consulate.

Students may have more time on their visa
According to the US Department of State (DOS) visas for students and their accompanying family members of the F-1, F-2 or M-1, M-2 categories may be issued up to 120 days before the date stated on the SEVIS form I-20 of the main applicant. The students and their families, however, may come to the US no earlier than 30 days before the date stated by the university on the SEVIS form I-20. A person who ahs entered the US on the F-1, F-2, M-1, or M-2 visa once may do so again as long as the student or family member status is till valid, the SEVIS documents must demonstrate this. So it is advisable for students to apply for their visa as early as possible. That way they will have their visa in good time and don't run the risk of missing classes or entire semesters in the US.