American H2B Visa Guide for Temporary Workers

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For people who may be seeking to acquire a visa for a business or job of any sort, this article is for you. The American H2B visa guide for temporary workers will outline all you need to know about the American H2B visa.

The H-2B program permits U.S. businesses or agents to import foreign nationals to the United States to fill temporary non-agricultural occupations if they fulfill certain regulatory standards.

On behalf of a prospective worker, a U.S. employer, a U.S. employer, or a U.S. agent as defined in the rules, must file Form I-129, Petition for a Non-immigrant Worker.

About H-2B Visa

Employers can temporarily recruit non-immigrants to do non-agricultural labor or services in the United States under the H-2B non-immigrant program. The job must be for a short time, such as a one-time event, seasonal requirement, peak-load demand, or intermittent need.

During the entire period of the approved H-2B labor certification, the employer must certify to the Department of Labor that it will pay the H-2B non-immigrant worker a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, State minimum wage, or local minimum wage for the occupation in the area of intended employment.

To safeguard similarly employed U.S. employees, the H-2B program also specifies specific recruitment and displacement rules.

Employers who want to hire H-2B employees temporarily must apply to the Chicago National Processing Center for Temporary Employment Certification (NPC).

An employer may seek many unidentified foreign employees as long as each worker is to provide the same services or labor, on the same terms and conditions, in the same occupation, in the same area of intended employment, and for the same amount of time.

The certification is given to the employer, not the employee, and it cannot be transferred from one workplace to another.

Before admitting H-2B non-immigrants, the US Secretary of Homeland Security must engage with appropriate authorities, according to the H-2B visa classification.

Except in the case of Guam, Homeland Security regulations require the petitioning employer to first obtain a temporary labor certification from the United States Secretary of Labor stating that:

  1. there are insufficient U.S. workers capable of performing the temporary services or labor at the time of filing the petition for H-2B classification and at the location where the foreign worker will perform the work; and
  2. the foreign worker’s employment will not jeopardize the national security of the United States.

All H-2B petitions will be reviewed and processed on a first-come, first-served basis by the Department of Labor.

Eligibility Criteria for H-2B visa?

The employer initiates the H-2B visa procedure. Foreign labor is sought by US businesses, whether public or private, sole proprietorships or corporations. Employers must, however, fulfill some requirements, including:

  1. Employers need to prove that they have looked for US employees, but there have not been enough
  2. By hiring foreign workers, they will not negatively affect the wages and working conditions of US employees
  3. That the foreign workers will fill temporary positions

These three requirements are satisfied by getting a Temporary Labor Certification from the Department of Labor (DOL), as described below.

Furthermore, employers are responsible for supplying the following:

  • Transportation for employees if they have to travel far from their place of residence and cannot return there within the same day. If they do not provide transportation immediately, then they should reimburse employees for the expenses at the end of the employment contract.
  • Three meals per day for the duration of the contract. Employers have the right to charge employees a fee that is deducted from their wages if they provide the three meals. If employers do not provide meals, then they should provide cooking facilities where employees cook their meals.
  • Fair wages are the same as for US workers. Employers should consult with the Department of Labor to determine a fair hourly wage for foreign workers that is not lower than the one they would pay for US workers.

Aside from the employers, employees or foreign workers also have to meet a few conditions:

  • They must have a job offer from a US employer
  • They have to prove their intent to return to their country of origin once their visa expires
  • They have to be eligible for an H-2B visa by proving that they are skilled workers in the job position that they are offered
  • They have to be from a country listed in the H-2B eligible countries list

Requirements for H-2B Program Employers

Employers that want to engage foreign laborers for seasonal or temporary agricultural work must take three steps:

  1. Obtain Department of Labor certification (DOL)
  2. Petition to the USCIS
  3. Comply with DOL standards

The applicant or employee can begin the visa application once all of these have been accepted by their respective agencies. If the certification and petition are refused, the employee will be denied an H-2A visa and would be unable to enter and work in the United States.

1. Obtain Department of Labor certification (DOL)

The first step to getting permission to hire H-2A workers for agricultural purposes is to get certification from the US Department of Labor. This can be done by filling out the following forms:

  • Form ETA-790 – Agricultural and Food Processing Clearance Order (job offer)
  • Form ETA-9142A – Foreign Labor Certification
  • Form ETA-790 should be submitted to the State Workforce Agency where the work will be performed 60 to 75 days before the employer needs the agricultural foreign workers. This form together with the ETA-9142A should be filed to the Chicago National Processing Center (NPC) about 45 days before there is a need for the employees.

These forms are filed so that the DOL can verify the reasons that the US employer wants to hire foreign employees. They want to know that the employer was unable to find workers from the US who could do the work and that the workers will not affect the wages of US employees.

The certification is processed by the Chicago NPC and a decision is communicated to the employer 30 days before the employees are needed. If the DOL approves the Temporary Labor Certification, the employer can then move on to the next step.

2. Petition to the USCIS

The second stage is to petition the US government to allow foreign workers to work in American businesses. This is accomplished by submitting Form I-129 to the USCIS.

The employer is responsible for filing the paperwork and paying the $460 charge. Employers must complete Form I-129 for each employee they want to hire.

The I-129 is evaluated by USCIS, and the employer receives an answer. If the petition is granted by USCIS, the employee will get a Form I-797, indicating that he or she is eligible to apply for an H-2A visa and work in the United States.

3. Comply with The DOL Standards

Employers must meet extra regulations from the Department of Labor to hire foreign labor. The following must be demonstrated by the employer:

The company must show the Department of Labor that they tried to hire Americans. This may be accomplished by placing employment advertisements in newspapers, television, radio, and other forms of media.

After that, they must demonstrate that they considered each US candidate and explain the reasons for their rejection.

  • Pay reasonable salaries to international employees

Employers in the United States must pay international workers the same wage as domestic workers. The wage should conform to the highest of the federal or state minimum wage, the Adverse Effect Wage Rate (AEWR), or the prevailing wage. Employers are urged to contact the Department of Labor before deciding on a pay rate.

If foreign employees are required to work at a distant location far from their home and cannot return the same day, the business is liable for providing housing. The dwelling will be examined and must meet Occupational Safety and Health Administration (OSHA) requirements.

Employers in the United States shall either supply three meals to foreign workers or provide cooking facilities so that employees may prepare their meals. Employers may charge workers for meals and deduct the cost from their pay if they supply them.

  • Provision of transportation

The employer is also expected to provide transportation to the employee in these cases:

  1. When 50% of the contract has been completed, the US employer has to reimburse the transportation expenses of the employee if they were incurred.
  2. If the employer provides housing, they are also responsible to provide transportation from the housing to the place of work.
  3. If the employee is returning to their place of recruitment at the end of the contract, the employer is also responsible to pay the economic costs of the transportation to return there. The employer may not be responsible to pay for such costs if the employee is not returning to the place of recruitment due to having another job.
  4. In case the employer is providing transportation to foreign workers, they should provide the same conditions for US workers too.

Requirements for H-2A Employees

The employee can begin their visa application if the company has demonstrated that it will satisfy all of the essential requirements to hire foreign employees and has received clearance from the DOL and USCIS.

Applications are sent to the US Embassy in the country from where the employee is applying. The steps are as follows:

  • Fill in the DS-160 form online
  • Pay the visa application fee of $190
  • Set up a visa interview appointment
  • Show up to the interview with these documents:
  • Form DS-160 receipt
  • Forms I-129 and I-797 to show USCIS approval
  • Your passport
  • One photo which meets the US Visa Digital Image Requirements
  • Documents that prove that you intend to return to your home country after your visa expires such as a deed of a property, a lease of an apartment, or a letter from an employer who states that they will hire you when you return.
  • Documents for your family members if they are accompanying you
  • If your visa application is approved, apply for visa stamping
  • In case all of these procedures go well, in the end, you will have a US H-2A visa through which you can go to the US to work temporarily.

Steps to Apply For an H-2B Visa

The application for an H-2B visa begins with the employer in the United States. You will have to go through three basic processes as an employer. These are:

Step 1: Fill out an application for a labor certification

You are both the petitioner and the employer. You must first receive a temporary labor certification from the Department of Labor before applying for an H-2B visa. If you plan to hire individuals in Guam, you will need to contact the Guam Department of Labor.

Step 2: Send USCIS Form I-129

You can go to the USCIS office to file Form I-129, Petition for a Nonimmigrant Worker, once you have obtained the temporary work certificate. The original certificate from the Department of Labor must be submitted.

If you’re looking for a job in Guam, you’ll need to submit a one-page H-2B final determination. If you’ve already done so, you’ll be prompted to write an explanation that includes the petition number.

Step 3: At the US embassy, alien employees apply for a visa

The final step is for the employee(s) to apply for an H-2B visa at the US embassy in their home country. To apply for admission to the United States through a US port of entry, go to the US Department of State’s embassy or consulate overseas. You can apply for direct admission without needing an H-2B visa.

Frequently Asked Questions (FAQs)

1. Does the H-2B visa have any travel restrictions?

No, it does not have any travel restrictions.

2. How long is an H-2B visa valid?

H-2A visas are only valid for one year because they are temporary agricultural work visas. As a result, the employee must return to their home country after a year. The H-2A visa can be renewed if they have not completed the work and the company needs them, or if they find another job.

3. Is it possible to change status on an H-2A visa?

You can alter your status if you find a job that is not temporary or seasonal agricultural employment but needs a different type of visa. If you find a position that requires an H-1B visa, for example, your company must go through the H-1B visa application process.

4. Can H-2B visa holders bring their families to the US?

Anyone with an H-2B visa can bring their spouse and children under the age of 21 with them. Family members will be required to apply for an H-4 visa. They are permitted to enroll in academic courses but are not permitted to work under the H-4 visa.

If someone on an H-4 visa finds work with a willing employer, they can alter their status if all of the requirements are satisfied.

5. What is the H-2B Visa processing time?

Visas are typically processed between 60 days to 120 days. Applicants submitting on 1st January are given visas so that they can start working in the US from June.

6. Is the H-2B Visa extension available?

H-2B Visas can be extended for a total period of 3 years, but not more than that.

Conclusion

Employers who can show a temporary need for staff and can’t locate them in the US can bring in foreign workers, according to the US government. The H-2B visa sponsors are in charge of this.

After being sponsored, foreign employees can apply for visas and work in the United States for a defined amount of time. We hope this article on the American H2B visa guide for temporary workers helps and serves as a great guide to temporary workers seeking H-2B Visas to America.

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