The H-2B Process
The H-2B Process
Immigration Law – Employment: The H-2B Visa Program
The H-2B Visa Program
The H-2B visa is a viable option for employers in an increasingly tight labor market. It allows U.S. employers to hire skilled and unskilled workers.
However, going through the process to obtain these visas is not for the faint of heart, as it may involve as many as five different state and federal agencies, and are the only nonimmigrant work visas that require the employer to first obtain a labor certification.
The H-2B program is available to only workers from certain countries. These include Central America and Mexico.
The employer must document that it has a temporary need for workers as either a one-time occurrence, a seasonal need, a peak load need, or an occasional need. The employment can consist of any type of employment that is not agricultural or in the services. It must be full-time defined as at least 35 hours per week.
Finally, there is a cap of 66,000 visas available each year. The cap is divided into two periods: 33,000 are reserved for petitions filed between October 1 and March 31, and the remaining 33,000 are reserved for April 1 through September 30.
The first step requires the employer to obtain a prevailing wage determination before filing the labor certification application with the Department of Labor. After receiving the determination, the employer can file for the labor certification. When the labor certification application has been approved, the employer must follow certain recruitment steps involving advertisement for the position. Once these preliminary steps have been completed, the employer is ready for the next big step, which is filing the petition with U.S. Citizenship and Immigration Service.
The timing of these steps is extremely important in order to meet the cap deadlines, set by the Citizenship and Immigration Service. An employer should plan on allocating about 5 to 6 months for the steps involved prior to the filing of the petition with the Service. Additionally, the petition should be ready for filing when the cap date begins.
Once the petition is approved, the beneficiary foreign workers are eligible to apply for the H-2B visa with the U.S. Department of State.
A qualified immigration attorney is needed to guide the employer and the workers through this procedural maze.
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