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H-2B Temporary Non-Agricultural Workers

 

The H-2B nonimmigrant classification applies to a non-citizen seeking to perform temporary non-agricultural labor or services in the United States without displacing qualified United States workers available to perform such services or labor and whose employment is not adversely affecting the wages and working conditions of United States workers. Graduates of medical schools coming to the United States to perform services as members of the medical profession are statutorily excluded from this category.

 

H-2B Visa Requirements

 

While H-2B nonimmigrants can be skilled or unskilled, the employer must meet two basic requirements in order to bring in foreign workers under the H-2B category:

 

(1) it must demonstrate that it has only a temporary need for the type of services or skills to be performed by the foreign beneficiaries (as compared to the H-1B category, where the employer's need can be permanent even though the worker is only admitted to fill that need on a temporary basis), and

 

(2) it must demonstrate that U.S. workers are not available who are unemployed and qualified to fill the position and the employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

 

Additional requirements for H-2B classification are as follows:

 

(1) the foreign national must have a foreign residence that he or she has no intention of abandoning, and must intend to depart the United States at the end of the temporary stay;

 

(2) the foreign national must possess the requisite training, education, or skills for the position in question;

 

(3) an admission slot within the annual cap must be available; and

 

(4) the beneficiary must be a national of a country designated for H-2B participation.

 

Labor Certification

 

DOL's temporary labor certification program for H-2B workers, set forth in 20 C.F.R. Part 655, Subpart A, is the process by which the agency acquires the information sufficient to make the determinations that unemployed U.S. workers capable of performing such services or labor cannot be found and that the employment of the foreign worker(s) will not adversely affect the wages and working conditions of similarly employed U.S. workers. An approved H-2B labor certification must be submitted with the petition filed with USCIS. 

 

What Is The Procedure?

 

The U.S. employer must first obtain a temporary labor certification from the Department of Labor indicating that U.S. workers capable of performing the temporary services or labor are not available and the foreign national's employment will not adversely affect the wages and working conditions of similarly employed United States workers.

 

After the labor certification application is certified, a nonimmigrant visa petition is filed by the employer with USCIS. The petition may be filed for multiple beneficiaries when the labor certification has been issued for multiple beneficiaries, and the beneficiaries will be performing the same service for the same period of time and in the same location.

 

Following approval of the petition, the foreign national or nationals may apply for H-2B visas permitting their admission to the United States.

 

NOTE: Recent statistics related to the H-2B category indicate that the most commonly certified positions in the H-2B category involve various types of outdoor work (e.g., landscapers, groundskeepers, tree planters, forest and conservation workers), work at resorts (e.g., amusement and recreation attendants, maids and housekeepers, kitchen helpers, sports instructors), food processing (meat, poultry, and fish cutters and trimmers), and construction for which employers often have a seasonal need for laborers. The top locations for which certifications were granted in recent years include Texas, Florida, Louisiana, Mississippi, Virginia, Missouri, and Maryland.

 

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