H2B Visa

The responsibility is placed on your US employer to prove that your intended employment and their need for a non-immigrant worker is for a short time. For that, they must show that for:

• One-time occurrence:
  • The temporary job is for one time occurrence
  • They haven’t employed workers to perform the job in the past
  • They won’t need workers to handle the job in the future
• Seasonal employment:
  • The job is traditionally connected to a particular season of the year by a pattern or event and is recurring
  • They are not claiming a seasonal need for a time that is unpredictable, subject to change, or a vacation period for the regular permanent full-time workers
• Peak load need:
  • They regularly employ permanent employees to do the job at the place of employment
  • They need to temporarily hire foreign employees to supplement the permanent staff due to seasonal or short-term demand
  • The temporary employment will not become a regular action
• Intermittent need
  • They have not employed permanent employees to handle the job
  • They need temporary workers occasionally or intermittently to do the job

In addition, a petitioner (US employer) must prove that:

• There are not enough U.S. residents or citizens who can, are available, and willing to do the temporary work.
• Their employment of temporary H-2B workers will not negatively affect the working conditions and wages of temporary US-based workers employed by the employer.

There are three steps to applying for an H2B visa.

Step One: the employer applies for a temporary labor certification

The first step in the process of getting an H2B visa is that your US employer or agent, otherwise called the petitioner, does the temporary labor certification application from the U.S. Department of Labor (DOL). If the foreign workers are to work in Guam, the petitioner is to make that application to Guam DOL.

This step must be completed before the petitioner requests H2B classification from the USCIS.

An employer must register 150-120 calendar days before they need to employ the prospective worker. During this process, they must obtain a prevailing Wage Determination (PWD) and then file a job order and H-2B application to the Chicago National Processing Center.

Step two: the petitioner submits a Form I-129 to USCIS

After the petitioner has received a valid temporary labor certification, they can file Form I-129 with the USCIS. Most petitioners are required to submit the original temporary labor certification along with Form I-129.

Suppose the petitioner is hiring more than one temporary non-agricultural worker performing the same service. In that case, the petitioner can file for all the foreign workers in one petition as long as the number of the H2B workers do not exceed the number of positions in the temporary labor certification.

Step three: The foreign workers apply for the visa

After the USCIS has approved the employer’s petition, the H-2B worker can apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulates in the UK.

With an H-2B visa, foreign workers can travel to the US and seek admission into the country with U.S. Customs and Border Protection at the airport or any U.S port of entry.

At the point of submitting the Form I-129, the employer must submit the original temporary labor certification.

If they had submitted the original temporary labor certification when submitting a previous Form I-129, a photocopy of the document is acceptable as long as they provide an explanation that includes the receipt number of the application that the original was filed with.

Also, the employer is to provide some required documents with Form I-129. The documents include:

• A cover letter on the company’s official letterhead that describes:
  • The nature of business of the employer
  • Locations or mailing addresses the employer uses
  • Duties of the UK citizen that is being employed
  • The reason why the employer needs temporary workers
  • The qualifications of the temporary staff
• Any documentation to prove why the job is temporary and that:
  • There aren’t enough qualified US citizens to handle the job
  • They will suffer irreparable harm if they do not hire foreign workers
  • They are abiding by all labour employment, health, and safety laws

The petitioner must make copies of the submitted documents and forms. If the USCIS approves the employer’s petition, the USCIS will give them a notice of approval (or Form I-797).

A copy of that notice of approval must be included in the H2B visa application made by the foreign worker. That and some other documents must be submitted. Those documents include:

• A completed Form DS-160 (online non-immigrant visa application)
• A completed Form DS-157 (if the applicant is a male between the ages of 16 and 45)
• Valid passport
• A passport photograph
• Proof that you will return to your home country when your H-2B visa expires

As an H2B visa applicant, you must pay $190 as the visa application fee. Most of the other fees are placed on your employer.

The employer must pay the base petition fee of $460 when submitting the Form I-129. If applicable, they are to pay a $150 fraud prevention and detection fee. There may also be other fees applicable depending on the type of organisation applying for the petition.

To request premium processing, the employer is to pay $1,500.

When you apply for the visa (step 3), it takes between 60 to 120 days for H2B visa processing on average.

Employers must start the petition in advance so the visa can be ready before the employment starts. As a general rule, they can start the petition at least 60 days in advance and no more than 120 days in advance.

Also, the employer can request premium processing with a Form I-907.

Dependents can join an H2B worker in the US. Eligible dependents are a spouse or civil partner and unmarried children under the age of 21. Your dependents can join you by applying for the H4 visa.

The H4 visa grants your dependents entry into the US for as long as they are authorised. However, they are not allowed to work or apply for a work visa if they are already in the US on the H4 visa. They can apply for their H4 visa when you are applying for your H2B visa.

Obtaining an H2B visa is complex; there are different departments to deal with and processes to handle. For assistance from an experienced immigration lawyer, contact Total Law. Call 0333 305 9375.

Usually, the USCIS will grant you an H2B visa with an authorized stay for the period your employer has stated they need your service. If you finish your job before the time granted in your visa, you don’t show up, or your contract is terminated, the employer must notify the USCIS.

The employer can apply for an extension of stay if they are still in need of your services. They must do that before your visa expires. When you need a renewal, your employer may need to request for or extend its labor certification.

The H2B visa can be extended for up to one year each time, but not more than three years in total. You must leave the US if you have stayed in the US for a total of three years on H2B status and remain outside the US for at least three months before returning as an H2B non-immigrant worker.

It’s important that you note that the H2B visa is a non-immigrant American visa. That means you cannot immigrate to the US in the long term on this visa. You must return to the UK or any other country outside the US when you have finished your job or before your visa expires.

No time spent in the US on the H2B visa counts towards a green card, and you cannot change your status from an H2B visa to Green Card. However, if you want to stay in the US for a longer time, you can find a new employer willing to sponsor another non-immigrant permit.

If you wish to immigrate to the US and possibly get a green card, apply for an immigrant visa, such as the EB1 visa. If you are already in the US, you must return to your home country before you submit your application for that visa.