The H-2B visa is issued to temporary non-agricultural workers coming to the United States. Unlike the H-1B visa, which is for highly skilled workers within “specialty occupations,” H-2B is for temporary non-agricultural jobs. As described in the regulations, a U.S. employer or U.S. agent must file a petition for a nonimmigrant worker (Form I-129) on behalf of the prospective worker.

To qualify for nonimmigrant H-2B classification, the petitioner must authenticate that –

There is a shortage of able, willing, qualified, and available workers in the U.S. to carry out the temporary work. Employing an H-2B immigrant worker would not affect the wage and working conditions of U.S. workers employed in a similar role. The prospective worker’s labor or services requirement is temporary, regardless of whether it can describe the underlying job as temporary. The employer’s need is considered short if it is a(n):

• Recurring seasonal need: Work that is regularly tied to a season, or
• Intermittent need: Work when an employer doesn’t have full-time staff and needs occasional workers, or
• Peak-load need: Work during busy periods for the employer when additional staff is needed, or
• One time occurrence: Work needed during a short, one time period.

H-2B petitions may only be approved for nationals of countries that the secretary of homeland security has designated, with the concurrence of the Office of the Secretary of State, as eligible to participate in the H-2B program. You can reach out to our immigration lawyers to determine the eligibility and application process for the beneficiary’s country.

There is a statutory limit on the total number of H-2B applicants who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year.

Currently, the H-2B cap limit is 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin work in the second half of the fiscal year (April 1 – September 30).
Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Certain H-2B workers are exempt from the H-2B capping. One can apply through that route if the capping limit has been reached. You can consult our immigration lawyers to know more.

H-2B visa application process

The program process for an H-2B visa application is divided into three steps:

Step 1: Apply for a temporary labor certification

The petitioner must apply to the DOL to receive the temporary labor certification. After obtaining the temporary labor certification for the nonimmigrant worker from DOL (or Guam DOL if the employment will be in Guam), you can request the H-2B classification from USCIS.

Step 2: Filing Form I-129 to USCIS

After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS. In addition, with limited exceptions, you must submit original provisional labor certification as initial evidence with Form I-129.

And if the DOL’s FLAG system processed the application for a temporary labor certification. In that case, you must include a printed copy of the electronic one-page “final determination” of the H-2B temporary labor certification approval with Form I-129.neys by your side.

Step 3: Prospective workers outside the U.S. appeal for the visa and admission.

After the approval of Form I-129 by USCIS, the prospective H-2B workers residing outside the United States needs to:

• Apply for an H-2B visa with the U.S. Department of State at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection at a U.S. port of entry; or
• Seek direct entry to the United States at a U.S. port entry under the H-2B classification with CBP in cases where an H-2B visa is not required.

Note: You may skip Step 1 in the H-2B process if you are petitioning for one or more Canadian musicians that will be employed within a 50-mile radius from the U.S.-Canadian border for 30 days or less. It’s crucial that the documents are submitted at the right time to avoid any delay in the application process. While the application process may seem somewhat complex, it can be made easier by having our immigration attorneys by your side.

Period of Stay

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in the H-2B classification is 3 years. A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit.

The Law Offices of Prashanthi Reddy, PLLC, possess years of experience representing U.S. employers or U.S. agents to bring nonimmigrant foreign nationals to the United States for temporary non-agricultural jobs under the H-2B visa program. Hence, we are uniquely positioned to advise our clients on best practices when submitting H-2B cases. Make sure you reach out to the Law Offices of Prashanthi Reddy, PLLC, at prashanthi@reddyesq.com or call us at 212-354-1010 for help today!