H-2B Application Process

Warning: Please refer to this information for a general outline of the H2B process. Please note that these steps may change at any time. This is a very complicated hiring process and this guide refers to New/Returning H2B employees. The H2B transfer process is different.

What is a visa?

Who can US businesses Employ?

Only certain employers can hire:

No employer can hire:

What is the H-2B Visa?

Who qualifies for H-2B Visas?

What are the H-2B application steps?

Things to Consider

214.2(h)(2)(i)(F)

What is a visa?

Visa: An official endorsement from the US department of State granting eligibility for admission to the US

Who can US businesses Employ?

Any employer can hire:

Only certain employers can hire:

No employer can hire:

What is the H-2B Visa?

Who qualifies for H-2B Visas?

What are the H-2B application steps?

  1. Determine if visas are still available.
  1. We file on January 1st of each year so there are visas available and the sooner we apply, the higher chance we have of getting our visas
  2. There is a cap to the number of H-2B visas and it is divided into 2 six month time fames.
  1. Figure out the position’s job descriptions and make sure it qualifies for the H-2B visa.
  1. We are defined as seasonal need
  2. We use Hotel Clerk, Baggage Porter, Counter Attendant and Housekeeper for our job descriptions
  1. This must be a full-time position
  2. Can apply for multiple beneficiaries as long s they will be doing the same type of work on the same terms & conditions in the same area of employment
  3. Must also demonstrate there is no labor dispute at the workplace (ex. strike)
  1. Submit the job description for Prevailing Wage (PW) or higher as we take the highest prevailing wage and pay all of the employees that rate.
  2. Register with the DOL, the Chicago National Processing Center (NPC) to establish need for H-2B (prior to filing with State Workforce Agency [SWA]).
  3. Submit job order to SWA in the area of intended employment concurrent with filing for ETA-9142.
  4. Prepare and File the for ETA-9142 to United States Citizenship and Immigration Services (USCIS) after the Prevailing Wage Determination (PWD) is obtained.
  1. I-129 with H-2B supplement form
  2. Beneficiary qualification (where required)
  3. Statement of temporary need and acknowledgement of paying beneficiary’s return transportation abroad if dismissed
  4. Filing fees = $325 (application), $500 (fraud prevention) and $1,225 (premium processing)
  5. Need TEC? Notice of Acceptance (NOA) or Notice of Disqualification (NOD) before proceeding
  6. Need evidence addressing temporary nature of employer’s needs
  7. Need evidence for the number of employees needed
  8. Need evidence that agent meets qualifications above under 214.2(h)(2)(i)(F) (see below).
  9. Need itinerary, including services and dates of engagement and names and addresses of employer and place of work if filed by an agent
  10. Evidence of applicants nationality (must come from country on designated list of countries applicable to H-2B program) and separate filing for employees from non-eligible countries
  11. Additional attestation requirements including petitioner’s responsibility for return transportation costs, agreement to notify USCIS if employee fails to appear or abandons work, and that beneficiary has not paid fees to obtain the employment.
  1. Conduct recruitment
  1. There is an ad posting we are required to run in a newspaper.
  1. Must run for two consecutive days
  2. One of the days must be a sunday
  3. Once this information is submitted to the DOL they will notify of other recruitment steps that will have to be undertaken (such as talent connect)
  4. Must contain everything in the Ad, so it can get pricey.
  1. Contact all former US employees who were laid off in the last 120 days & were employed during the previous year
  1. If they are interested in the job but we do not want them back we are still required to send then notice
  2. A good idea is to send the job description with the application and a due date for consideration of employment
  3. Also, if they are interested and applied, you are not required to offer them the same job, you can offer them another position. You are however, required to hire the candidate unless they are not interested in the other job.
  1. Must do posting
  2. Prepare recruitment report
  3. Once USCIS approves the H-2B application, the employees must schedule an appointment with the US consulate closest to their home abroad.

Things to Consider

214.2(h)(2)(i)(F)

(F) Agents as petitioners . A United States agent may file a petition in cases involving workers who are traditionally self-employed or workers who use agents to arrange short-term employment on their behalf with numerous employers, and in cases where a foreign employer authorizes the agent to act on its behalf. A United States agent may be: the actual employer of the beneficiary, the representative of both the employer and the beneficiary, or, a person or entity authorized by the employer to act for, or in place of, the employer as i t agent. A petition filed by a United States agent is subject to the following conditions; (Paragraph (h)(2)(i)(F) revised 4/16/97; 62 FR 18508 )

(1) An agent performing the function of an employer must guarantee the wages and other terms and conditions of employment by contractual agreement with the beneficiary or beneficiaries of the petition. The agent/employer must also provide an itinerary of definite employment and information on any other services planned for the period of time requested.

(2) A person or company in business as an agent may file the H petition involving multiple employers as the representative of both the employers and the beneficiary or beneficiaries if the supporting documentation includes a complete itinerary of services or engagements. The itinerary shall specify the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishment, venues, or locations where the services will be performed. In questionable cases, a contract between the employers and the beneficiary or beneficiaries may be required. The burden is on the agent to explain the terms and conditions of the employment and to provide any required documentation.

(3) A foreign employer who, through a United States agent, files a petition for an H nonimmigrant alien is responsible for complying with all of the employer sanctions provisions of section 274A of the Act and 8 CFR part 274a .