The H-2B Visa is a temporary work visa that allows foreign nationals to work in non-agricultural jobs in the United States for a limited time. The visa is typically issued for seasonal or peak-load positions in sectors such as hospitality, construction, landscaping, and retail. This guide explains the H-2B Visa requirements, the application process, and essential details for both employers and foreign workers.
1. What is the H-2B Visa?
The H-2B Visa is a non-immigrant visa for foreign workers filling temporary, non-agricultural jobs in the U.S. These positions are usually seasonal, for peak periods, or fill a one-time need. The visa allows U.S. employers to hire foreign workers when no sufficient U.S. workers are available.
Typical industries that use the H-2B Visa include:
- Hospitality (hotels, resorts)
- Landscaping
- Construction
- Retail and customer service
- Amusement parks and recreational facilities
2. H-2B Visa Eligibility Requirements
The H-2B Visa requires that both the U.S. employer and the foreign worker meet certain conditions:
A. Employer Requirements
The U.S. employer must demonstrate:
- Temporary Need: The job must be temporary, lasting up to one year. The employer must show that it is a seasonal, peak-load, or intermittent need.
- Lack of U.S. Workers: The employer must prove they could not find qualified U.S. workers to fill the position.
- Certification from the Department of Labor (DOL): Before applying for the H-2B Visa, the employer must obtain a temporary labor certification from the DOL.
B. Worker Requirements
The foreign worker applying for an H-2B Visa must:
- Be a national of an H-2B eligible country (the list of eligible countries is updated annually by the Department of Homeland Security).
- Have a job offer from a U.S. employer with an approved temporary labor certification.
- Have intent to return to their home country after the job assignment, as this is a temporary visa with no direct path to permanent residency.
3. H-2B Visa Application Process
The application process for an H-2B Visa involves several steps, including a temporary labor certification for the employer and a visa application for the foreign worker.
Step 1: Employer Submits a Temporary Labor Certification Application to the DOL
The employer must apply to the Department of Labor (DOL) for a temporary labor certification by filing Form ETA-9142B. This form certifies that the job is temporary and that the employer has made efforts to recruit U.S. workers.
Step 2: Submit Form I-129 to USCIS
Once the labor certification is approved, the employer submits Form I-129 (Petition for Nonimmigrant Worker) to U.S. Citizenship and Immigration Services (USCIS) on behalf of the worker. This petition must include the approved labor certification and details about the job offer.
Step 3: Apply for the H-2B Visa at a U.S. Consulate or Embassy
After USCIS approves Form I-129, the foreign worker can apply for the H-2B Visa at a U.S. consulate or embassy in their home country. They will need to complete Form DS-160 (Online Nonimmigrant Visa Application), pay the visa fee, and attend an interview.
Step 4: Attend the Visa Interview
The visa interview is a mandatory part of the H-2B Visa process. The applicant must provide all required documentation, including a valid passport, the DS-160 confirmation page, visa fee payment receipt, and any other supporting documents requested by the consulate.
Step 5: Enter the United States
If the visa is approved, the foreign worker can travel to the U.S. for employment. Upon arrival, they must show their visa and work authorization documents to U.S. Customs and Border Protection (CBP).
4. Required Documents for the H-2B Visa
Both the employer and the foreign worker need to submit specific documents for the H-2B Visa process.
For Employers:
- Form ETA-9142B: Application for Temporary Employment Certification, showing the job details and recruitment efforts.
- Form I-129: Petition for Nonimmigrant Worker, which includes the DOL certification and employer job offer.
- Job Offer Letter: Details of the job title, wages, duties, and duration.
For Workers:
- Form DS-160: Nonimmigrant Visa Application, completed and submitted online.
- Valid Passport: Must be valid for the intended period of stay and six months beyond.
- Visa Fee Payment Receipt: Proof of payment for the visa application fee.
- Passport-Size Photograph: A recent photo meeting U.S. visa photo requirements.
- Job Offer Letter from the U.S. Employer: Confirmation of the position, wage, and work duration.
- Proof of Ties to Home Country: Evidence that the applicant intends to return to their home country, such as family, property ownership, or other connections.
5. Duration and Extensions of the H-2B Visa
The H-2B Visa is initially valid for the duration of the temporary labor certification, typically up to one year. However, extensions may be requested under certain circumstances.
Extension Rules:
- Extensions: The visa can be extended in increments of up to one year each, with a maximum cumulative stay of three years.
- Return to Home Country: After reaching the three-year maximum, the visa holder must leave the U.S. and remain outside the country for at least three months before applying for a new H-2B Visa.
6. Family Members of H-2B Visa Holders
Spouses and unmarried children under 21 of H-2B Visa holders may apply for H-4 dependent visas to accompany the primary visa holder to the U.S. However, H-4 dependents are not permitted to work while in the U.S. They may attend school or engage in studies during their stay.
7. Cap on the H-2B Visa Program
There is an annual limit, or “cap,” on the number of H-2B Visas that can be issued, which is 66,000 per fiscal year:
- 33,000 visas for the first half of the fiscal year (October 1 to March 31).
- 33,000 visas for the second half (April 1 to September 30).
Unused visas from the first half are carried over to the second half. Certain workers, including those in fish roe processing, forestry, and certain returning workers, may be exempt from the cap.
8. Frequently Asked Questions (FAQs)
1. Can H-2B Visa holders change employers in the U.S.?
Yes, H-2B Visa holders may change employers, but the new employer must file a new Form I-129 and receive DOL certification before the worker can switch jobs.
2. How long does it take to process an H-2B Visa?
Processing can take several months, depending on DOL certification and USCIS processing times. Employers are advised to apply well in advance of the start date.
3. Can an H-2B Visa holder apply for a Green Card?
The H-2B Visa is temporary and does not provide a direct path to a Green Card. However, H-2B holders may explore other visa options if they meet the eligibility requirements.
4. Are H-2B Visa holders subject to Social Security and Medicare taxes?
Yes, H-2B Visa holders are subject to U.S. payroll taxes, including Social Security and Medicare, unlike certain other visa categories.
5. Can I extend my H-2B Visa if I want to stay longer?
Yes, H-2B Visa holders can request extensions in one-year increments, up to a total stay of three years. After three years, they must leave the U.S. and remain outside for three months before applying again.
6. Can H-4 dependents work in the U.S.?
No, dependents on H-4 visas are not permitted to work, though they can attend school or study.