H-2B for Non-Professional Temporary Workers

H-2B Temporary Non-Agricultural Workers
The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. A U.S. employer must file a Form I-129, Petition for Non-immigrant Worker, on a prospective worker’s behalf.

To qualify for H-2B nonimmigrant classification:

• The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
• The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
• The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
• Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, see Cap Count for H-2B Non-immigrants.

H-2B Program Process

• Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor.  Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).
• Step 2: Employer Submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129.
• Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.  After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.

H-2B Eligible Countries List

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis.  Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:  Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.  Of these countries, the following were designated for the first time this year:  Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.

Period of Stay

Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year).   H-2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.

An individual who has held H-2B non-immigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B non-immigrant.

Family of H-2B Workers

Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 non-immigrant classification.  Family members in H-4 non-immigrant classification may not engage in employment in the United States.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if an H-2B worker is a:

• No show: an alien who fails to report to work within 5 work days of the employment start date on the H–2B petition
• Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer
• Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or
• Early Completion: an alien who completes the H-2B labor or services for which he/she was hired more than 30 days early.

As stated in a notice published by DHS in the federal register on December 19, 2008, petitioners must include the following information in their Employment-Related notification:

1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion)”
2. The reason for untimely notification and evidence for good cause, if applicable
3. The USCIS receipt number of the approved H–2B petition
4. The petitioner’s information

– Name
– Address
– Telephone number
– Employer identification number (EIN)
5.  The employer’s information (if different from that of the petitioner):
– Name
– Address
– Telephone number
6.  The H-2B worker’s information:
– Full Name
– Date of birth
– Place of birth
– Last known physical address & telephone number

Additionally to assist USCIS with identification of the H-2B worker, USCIS requests that, if available, petitioners also submit each H-2B worker’s:

• Social Security Number, and
• Visa Number

Fee-Related Notifications to USCIS

A petitioner, agent, facilitator, recruiter or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an alien H-2B worker as a condition of employment.

Petitioners are provided with the opportunity to avoid denial or revocation (on notice) of their H-2B petition if they notify USCIS that they obtained information concerning the beneficiary’s payment or agreement to pay a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2B petition. This narrow exception does not apply, however, where a petitioner knew or  should have known at the time of the filing of its H-2B petition that the prospective worker had paid or agreed to pay such recruitment-related fees to any such persons or entities.

Notification of an alien’s payment or agreement to pay the prohibited fees to a recruiter, facilitator or similar employment service must be made within 2 workdays of the petitioner gaining knowledge of such payment or agreement.

Petitioners must include the following information in their Fee-Related notification:

1. The reason for the notification
2. The USCIS receipt number of the approved H-2B petition
3. The petitioner’s information

– Name
– Address
– Telephone number
4.  The employer’s information (if different from that of the petitioner):
– Name
– Address
– Telephone number
5.  Information about the recruiter, facilitator, or placement service to which the alien beneficiaries paid or agreed to pay the prohibited fee:
– Name
– Address

Fees not prohibited are: the lesser of the fair market value or actual costs of transportation and any government-mandated passport, visa, or inspection fees to the extent that the payment of such costs and fees by the H-2B worker is not prohibited by statute or Department of Labor regulations.