Non-Immigrant: H-2B Visa - Seasonal Workers
The H-2B program fills employers' needs for seasonal or other short-term job needs that cannot be filled by available U.S. labor. The versatile H-2B visa provides employers with essential skills needed from the most basic unskilled laborer positions to high tech aerospace workers. The H-2B visa provides unique options for employers to find the required numbers of alien laborers and professionals that cannot be located within the United States.
The requisite temporary job need can arise in one or more of four categories:
- One-time occurrences (e.g. foreign professional needed to train U.S. workers),
- Recurring seasonal jobs (e.g. ski instructor or landscape laborer),
- Peakload demands (e.g. special expertise or additional positions on one-time complex or large-scale projects), and
- . Intermittent/occasional jobs (e.g. technicians upgrading foreign machinery).
The INA test of "temporary services or labor" focuses on the temporary nature of an employer's need, not whether or not an otherwise on-going job opening is being offered to a particular alien for a temporary, fixed time. The test for the temporary nature of the employer's job is determined on whether the needs are seasonal, peakload, or intermittent, or on a one-time occurrence as defined in the regulations.
In all cases, even though the H-2B visa can be issued for up to one year, it is assumed that the temporary need has a "clear beginning and end" which will self-destruct in a year or less by a "prearranged date" when each alien employee will promptly return to foreign shores. The temporary nature of needs lasting longer than 10 months are suspect and need to be "adequately justified." In effect, though a dual consequence of the temporary nature of the job is that the work is temporary too, H-2B workers do not qualify for temporary work unless the underlying job itself is temporary.
In order to show that an employer's temporary need cannot be satisfied from the U.S. labor force, employers must convince four agencies that the temporary need satisfies applicable H-2B requirements:
- State Employment Security Agency (SESA) - After SESAs take the first look at the temporary nature of the proposed job, and help employers design recruitment strategies and specific classified ads, employers are able to assemble and submit an Application for Alien Employment Certification on DOL Form ETA-750A.
- U.S. Department of Labor (DOL) - The DOL regional office reviews the SESA recommendations regarding labor certification and issues the necessary temporary labor certification or denial thereof to the employer.
- Immigration and Naturalization Service (INS) - The INS regional center with jurisdiction over the area of employment receives the employer's I-129 petition, reviews the DOL "advice" on labor certification, determines whether the job itself is really temporary, and determines whether to issue an I-797 Notice of Approval.
- Department of State (DOS) Consular Offices - Upon notice of INS approval to a DOS overseas consular office designated by the employer, beneficiaries may apply for H-2B travel and employment.
The Immigration and Nationality Act has capped H-2B workers at 66,000 per fiscal year since 1992. Family members are not subject to the cap.