Overview
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.
Temporary Need
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.
Application Process
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.
Visas Availability
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.
