H-2B Visa: Non-agricultural workers in USA

Employers of non-agricultural industries initiate the H-2B visa process.

H-2B Visa 2019-08-30T10:08:53+00:00

The second type of visa within the H-2 temporary U.S work visas is the H-2B visa. Whereas the H-2A visa targets temporary and seasonal agricultural workers, the H-2B program is for temporary non-agricultural workers.

The U.S government allows employers who can prove their temporary need for employees and cannot find them in the U.S to bring in foreign workers. This is done through the H-2B visa sponsors. Foreign workers can then apply for the visas after being sponsored and have the opportunity to work in the U.S for a specified period of time.

The H-2B visa jobs are designed for some specific industries which experience demand surges and demonstrate a need for additional temporary workers. Industries, which qualify to hire H-2B workers include:

  • Hospitality
  • Cruise Ships
  • Resorts and Theme Parks
  • Construction
  • Ski resorts
  • Golf courses
  • Maintenance and janitorial
  • Landscaping
  • Water Parks
  • Warehouses
  • Restaurants and bars
  • Retail stores
  • Sports and athletics, etc.

The difference between the H-2A visa and the H-2B is not only in the fact that agricultural workers cannot get an H-2B visa. It also lies in the fact that the H-2B visa has a cap, while the H-2A does not. The cap for the H-2B visa is 66,000 visas per fiscal year. The distinction becomes even more specific, since there is a certain number of visas per each part of the fiscal year. In the first part of the fiscal year, from October 1st to March 31st, 33,000 H-2B visas are given. The rest, so another 33,000 are given in the second part of the fiscal year, from April 1st to September 30th.

If in the first part of the fiscal year, not all 33,000 visas are given, the rest can be given on the second part. However, if the yearly cap is not fulfilled, the difference is not carried over to the next year.

Who qualifies for an H-2B visa?

The H-2B visa process is initiated by the employer. U.S companies, whether they are public or private, sole proprietorships, or corporations want to hire foreign workers. However, employers should meet a few criteria such as:

  • Employers need to prove that they have looked for U.S employees, but there have not been enough
  • That by hiring foreign workers, they will not negatively affect the wages and working conditions of U.S employees
  • That the foreign workers will fill temporary positions

These three conditions are met by obtaining the Department of Labor (DOL) Temporary Labor Certification, which is detailed below. In addition, employers must take responsibility for providing 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 own meals.
  • Fair wages that are the same as for U.S workers. Employers should consult with the Department of Labor to determine the fair hourly wage for foreign workers that is not lower than the one they would pay for U.S workers.

Besides the employers, employees or foreign workers also have to fulfill a few conditions:

  • They must have a job offer from a U.S 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

The Department of Homeland Security has determined the citizens of countries that are eligible to get H-2B visas. The list is updated each year and employers can ask to add other countries.

The current 2017 H-2B countries list includes these countries:

ArgentinaAustraliaAustriaBarbados
BelgiumBelize (belize)BrazilBrunei
BulgariaCanadaChileColombia
Costa RicaCroatiaCzech RepublicDenmark
Dominican RepublicEcuadorEl SalvadorEstonia
EthiopiaFijiFinlandFrance
GermanyGreeceGrenadaGuatemala
Haiti (removed)HondurasHungaryIceland
IrelandIsraelItalyJamaica
JapanKiribatiLatviaLichtenstein
LithuaniaLuxembourgNorth MacedoniaMadagascar
MaltaMoldovaMexicoMonaco
MontenegroNauruThe NetherlandsNicaragua
New ZealandNorwayPanamaPapua New Guinea
PeruThe PhilippinesPolandPortugal
RomaniaSamoa (removed)San MarinoSerbia
SingaporeSlovakiaSloveniaSolomon Islands
South Africa South KoreaSpainSt. Vincent and the Grenadines
SwedenSwitzerlandTaiwan*Thailand
Timor-LesteTongaTurkeyTuvalu
UkraineUruguayVanuatu

If an employer wants to hire a foreign worker who is not on the list, they should provide these documents:

  • A written request to the Department of Homeland Security
  • The foreign workers’ documents
  • Proof that the worker will benefit the U.S by getting the H-2B visa

The Department of Homeland Security will then assess the request and make a decision. If employers are hiring foreign workers from countries on and off the list, they are recommended to submit two petitions for each group to make processing faster.

What are the requirements for H-2B program employers?

H-2B program employers have to follow two steps in order to get permission to hire foreign workers for temporary work purposes.

Get DOL Certification

All U.S employers who want to hire foreign employees have to go through the Department of Labor to get certification. In the H-2B visa case, a Temporary Labor Certification is necessary. Employers have to file and prepare these documents:

  • Form ETA-9155 – Application for H-2B registration (no more than 150 and no less than 120 days before the worker is needed)
  • Form ETA-9141 – Application for Prevailing Wage Determination
  • Form ETA-9142 – Application for Temporary Employment Certification (no more than 90 and no less than 75 days before the worker is needed)

Besides these forms, employers have to prove that the worker is needed temporarily. There are four types of temporary work that qualify:

  • One-time occurrence – which means that the job positions are usually permanent, but some event has created a situation where there is a need for a temporary worker. Another situation is if the employer has never hired someone for that certain job position, and does not plan to do so again in the future, but needs someone just for now.
  • Seasonal need – which means that there is a shortage of labor now because the industry that the employer is in has a traditional cycle of seasonality, but not because of some unpredictability or because permanent employees are on vacation.
  • Peakload need – which means that the job position is usually filled by permanent staff, but due to increased short-term demand, the employer needs additional temporary staff.
  • Intermittent need – which means that the employer does not hire permanent staff for that job position, but always hires temporary staff for short periods of time.

Employers also have to prove that they did not find U.S employees who were willing, able, qualified, or available to do the job. To prove this, they have to go through a recruitment process. The recruiting process includes posting job ads in newspapers and other media. The job ads have to be in the newspaper for three consecutive days. In addition, the offer has to be open to U.S workers up until 21 days before the employer needs the services of the employee.

The employer then needs to send the documentation that proved their recruiting efforts to the Department of Labor, in order to qualify for the certification. If the DOL approves the Temporary Labor Certification, it is valid for three years. Then the employer can go through the next steps.

Submit petition to USCIS

The next step is to file the petition to the Unite States Citizen and Immigration Services (USCIS). The petition is filed through filling Form I-129 no more than six months and no less than 45 days before there is a need for the employees. Individual petitions should be submitted for each employee and they cannot be transferred to other employees.

If USCIS approves the petition, they will issue Form I-797 to the employer. Form I-797 contains the dates for when the employer can hire that certain employee and when the work must end. Employers must adhere to the working dates, otherwise future petitions could be denied.

What are the requirements for H-2B employees?

After the employer gets all approvals and certifications, the employee or foreign worker can proceed to apply for the H-2B visa. They need the following documents:

After that, they will set a visa interview and attend it. During the interview, they will be assessed by the U.S Embassy whether they are fit to have an H-2B visa. If the visa is approved, the employee files for visa stamping and can then make travel arrangements for the U.S.

The employee is allowed to go into the U.S between the dates that are stated on the Form I-797 for employment.
The second U.S work visa amongst non-immigrant visas is the H-2 visa. The H-2 visa is designed for two types of workers:

The H-2A visa is directed to those who will work on temporary or seasonal agricultural work. By seasonal, this means that the work is within a specified period of time or event. By temporary, it means that the work does not take more than 1 year to complete.

Based on this, employers in the U.S who have farms, farming companies or corporations, are allowed to hire farm hands from foreign countries. These farm hands will help the employers with agricultural related jobs for a specified period of time.

There is no cap for the H-2A visas. This means that anyone who applies for the visa and gets approved can come into the U.S to work and there are not restrictions on how many people can be employed in this work.

Who can apply for an H-2A visa?

The H-2A visa beneficiaries are U.S farm employers and foreign employees. Any U.S farm owner who needs extra workers qualifies to initiate the H-2A visa process for foreign workers. They should fulfill the following criteria:

  • The job positions that they offer should be temporary and seasonal agricultural work
  • Show that U.S workers are not willing, qualified, able, or available to work in those positions
  • Show that by hiring foreign workers they will not negatively affect wages and work conditions of U.S employees in the same sector
  • Have the necessary documents and petition approvals

In addition to the employers, there are conditions for employees too. The conditions to qualify for an H-2A visa as an employee are:

  • Find a job from a U.S employer who is offering temporary agricultural work
  • Prove that they intend to return to their home country after the visa expires
  • Be of a certain nationality. Not all farm workers from all countries can come to the U.S to work. The Department of Homeland Security (DHS) has determined the number of countries from which H-2A workers can be hired. These countries are listed below:
BruneiBulgariaCanadaChile
ColombiaCosta RicaCroatiaCzech Republic
DenmarkDominican RepublicEcuadorEl Salvador
EstoniaEthiopiaFijiFinland
FranceGermanyGreeceGrenada
GuatemalaHaiti (removed)HondurasHungary
IcelandIrelandIsraelItaly
JamaicaJapanKiribatiLatvia
LichtensteinLithuaniaLuxembourgNorth Macedonia
MadagascarMaltaMoldovaMexico
MonacoMontenegroNauruThe Netherlands
NicaraguaNew ZealandNorwayPanama
Papua New GuineaPeruThe PhilippinesPoland
PortugalRomaniaSamoa (removed)San Marino
SerbiaSingaporeSlovakiaSlovenia
Solomon IslandsSouth AfricaSouth KoreaSpain
St. Vincent and the GrenadinesSwedenSwitzerlandTaiwan*
ThailandTimor-LesteTongaTurkey
TuvaluUkraineUruguayVanuatu

However, if a U.S employer wants to hire an agricultural worker from a country that is not on the list, they will have to go through some procedures, such as:

  • Send a request in writing to the DHS
  • Identify the foreign workers by name, date of birth, country of birth, and country of citizenship
  • Submit proof that the U.S benefits from giving an H-2A visa to the workers

The DHS will take into account the request and might update the list to include that country if they determine that it is in the interest of the U.S to have that worker in the country.

U.S employers who are hiring workers from countries on the list and off the list are recommended to submit two petitions. This is because it will take less time to process them if they are separated into two groups.

What are the requirements for H-2A employers?

Employers who want to hire foreign workers for temporary and seasonal agricultural work have to follow two steps:

  • Get certification from the Department of Labor (DOL)
  • Submit petition to USCIS
  • Meet DOL requirements

If all of these are approved from their respective agencies, the applicant or employee can start the visa application. Otherwise, if the certification and petition are denied, the employee cannot get the H-2A visa and will not be allowed to enter and work in the U.S.

Certification from DOL

The first step to getting permission to hire H-2A workers for agricultural purposes is to get certifications from the U.S Department of Labor. This can be done by filing 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 U.S employer wants to hire foreign employees. They want to know that the employer was unable to find workers from the U.S who could do the work and that the workers will not affect the wages of U.S 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.

Submit petition to USCIS

The second step is to petition for the U.S government to allow foreign workers to be hired in a U.S company. This is done by filing Form I-129 to USCIS. The form is filed by the employer and a fee if $460 is paid for it. Employers should file Form I-129 for each employee that they intend to hire.

The I-129 is reviewed from USCIS and a response is returned to the employer. If USCIS approved the petition, they will give a Form I-797 which means that the employee can start applying for the H-2A visa and is allowed to work in the U.S.

Meet DOL requirements

The Department of Labor has more requirements for employers in order for them to be allowed to hire foreign workers. The employer has to prove the following:

Efforts for recruitment

The employer has to demonstrate to the DOL that they made efforts to recruit U.S workers. This can be done by advertising the job positions in newspapers, TV, radio, or other media. Then they have to prove that they took into consideration each U.S applicant and provide reasons as to why they were rejected.

Pay foreign workers fair wages

U.S employers must pay the same wage rate for foreign workers as they would U.S workers. The wage should comply either with the federal or state minimum wage, the Adverse Effect Wage Rate (AEWR), or the prevailing wage, whichever one is the highest. Employers are encouraged to consult with the DOL about what wage rate to use.

Provide housing

If foreign employees work in a remote place that is far from their residence, and they cannot return to it in the same day, the employer is responsible to provide them with housing. The housing will be inspected and should comply with the Occupational Safety and Health Administration (OSHA) standards.

Provide meals

U.S employers should either provide three meals to foreign workers or have cooking facilities in the workplace where employees can cook their own meals. If employers provide the meals, they are allowed to charge workers for them and deduct it from their wage.

Provide transportation

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

  • When 50% of the contract has been completed, the U.S employer has to reimburse the transportation expenses of the employee if they were incurred
  • If the employer provides housing, they are also responsible to provide transportation from the housing to the place of work
  • 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.
  • In case the employer is providing transportation to foreign workers, they should also provide the same conditions for U.S workers too.

What are the requirements for H-2A employees?

After the employer has proven that they will meet all the necessary conditions to hire foreign workers and get approvals from DOL and USCIS, the employee can start their visa application. Applications are done at the U.S Embassy where the employee is applying from. These are the procedures:

  1. Fill in the DS-160 form online
  2. Pay the visa application fee of $190
  3. Set up a visa interview appointment
  4. 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 which 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 letter from an employer who states that they will hire you when you return.
    • Documents for your family members if they are accompanying you
  5. If your visa application is approved, apply for visa stamping
  6. In case all of these procedures go well, at the end you will have a U.S H-2A visa through which you can go to the U.S to work temporarily.

How long does it take to process H-2A visas?

Processing times vary for H-2A visas since there is seasonality and sometimes it might take longer. However, it is recommended for U.S employers to file USCIS petitions at least 60 days, but no more than 120 days before they need the foreign workers.

The U.S government takes priority in H-2A visas so they expedite the process due to the fact that agricultural work is seasonal.

How long is a H-2A visa valid?

Since H-2A visas are temporary for agricultural work, they are valid for 1 year. So after a year, the employee has to return to their country of origin. However, in case they have not completed the work and the employer needs them, or they find another employer, the H-2A visa can be extended.

Extensions are done in one-year increments, and the total amount of time that a H-2A visa holder can stay in the U.S is three years. This means that the H-2A visa can be extended two times. After these three years, the H-2A workers must return to their home country and stay there for an uninterrupted time of 3 months before they are eligible to apply for the visa again

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

If you have found a job which does not qualify as temporary and seasonal agricultural work, but requires a different type of visa, you can change your status. For example, if you have found a job which requires an H-1B, then your employer needs to undergo the procedures to getting the H-1B visa.

In addition, if you find a new employer for an H-2A visa, the employer needs to get the DOL certification and file a new Form -129, then you can start working for them.

Many foreign workers also wonder whether they can apply for a Green Card when they have an H-2A visa. The answer is that they can. H-2A visa holders can apply for different types of Green Cards, whether they are Employment or Family based Green Cards.

Why would the U.S Embassy deny my H-2A visa?

The reasons as to why the U.S Embassy might deny an H-2A visa are mostly employer related. It can happen because:

  • There are enough U.S workers who can complete the job
  • The employer did not file the certification and petitions in time, so they could not prove the unavailability of U.S workers
  • The employer did not conduct enough recruiting efforts
  • The employer did not/cannot meet the requirements of compensation, meals, housing, and transportation
  • The employer has previously violated H-2A terms and conditions

Can my family join me when on an H-2A visa?

The spouse of the H-2A visa holder and children under 21 years old can accompany them to the U.S. They will have to apply for an H-4 visa. Under the H-4 visa, dependents are not allowed to work. Only dependents of H-1 visas are allowed to work under the H-4 EAD program in certain circumstances.

If the visa of the primary H-2A holder is extended, the family can also apply for an extension of their H-4 visa. In addition, if the family finds jobs which require H-2A visas, they can try to change their status if employers go through the necessary procedures.

How long is the H-2B visa valid?

Since the H-2B visa is temporary, it does not allow for longer stays than 1 year in the U.S. So those who have an H-2B visa are allowed to stay for the period that is stated in their I-797, but no more than one year. Applicants should also keep in mind that time spent outside the U.S also counts as H-2B stay, once they get the visa.

The H-2B visa can be extended however. If the employer files for an extension, they must have a valid reason as to why they need the temporary foreign worker. For the H-2B visa, two extensions for one year each are available. So in total, the maximum amount that a foreign temporary worker can stay in the U.S on an H-2B visa is 3 years.

After the 3 years, H-2B visa holders are allowed to stay in their home country for 3 months before they can again apply for the H-2B visa.

Can I change status while on an H-2B visa?

Anyone who is on an H-2B visa in the U.S can file for status changes. If they find a new H-2B employer, the new employer must file for certification and petition to USCIS to be able to hire the foreign worker.

In addition, if the H-2B visa holder finds jobs that require other visas, they are allowed to have their new employer petition for them to change status. If, for example, the H-2B visa holder finds a temporary agricultural job that requires an H-2A visa, their new employer has to follow the H-2A visa procedures.

You can also go from an H-2B visa to a Green Card. H-2B visa holders can apply for Green Cards which are either Employment or Family Based.

Why could the U.S deny an H-2B visa?

The H-2B visa could be denied on different grounds, mainly due to the nature of temporary work. Some reasons why the H-2B visa could be denied are:

  • There were enough willing and capable U.S workers for the job position
  • The employer affected wages and work conditions of U.S employees
  • The employer did not file requests and documents within the necessary time frame
  • The employer did not make enough recruitment efforts to hire U.S workers
  • The employer violated H-2B terms and conditions previously

Can H-2B visa holders bring their family to the U.S?

Anyone who has an H-2B visa is allowed to have their spouse and children under 21 years old accompany them. The family members will have to apply with an H-4 visa. Under the H-4 visa, they can enroll in academic courses, but are not allowed to work. However, if someone on an H-4 visa finds a job with an employer willing to sponsor them, they can change status if all necessary conditions are met.

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