H-2B Application Process

Warning: The H-2B visa application process is complicated, and the following steps may change at any time. This guide is for new or returning H-2B employees only. The H-2B transfer process is different for H-2B out of country applicants.

Disclaimer: The information provided is for general informational purposes only and is not intended to provide legal advice or to be relied upon as legal guidance. The H-2B visa process is subject to change and may vary depending on individual circumstances. The company is not responsible for any errors or omissions in the information provided or for any actions taken based on the information provided. It is strongly recommended that individuals seeking an H-2B visa consult with an experienced immigration attorney for personalized guidance.

What is a visa?

A visa is an official endorsement from the U.S. Department of State that grants eligibility for admission to the United States. It is a stamp placed in the passport by a U.S. Consulate/Embassy abroad.

Who can U.S. businesses employ?

Any employer can hire U.S. citizens, green card holders (lawful permanent residents), and work permit holders (green card applicants, spouses of E, J, or L visa holders, and students in post-graduate training). Only certain employers can hire student visa holders with authorization to work off-campus (F, M, or J students), seasonal temporary workers (H-2A, H-2B), and professional visas (-1B, E, L, TN). No employer can hire student visa holders without authorization to work off-campus (F, M, or J students), spouses of certain visa holders (H-4, F-2, TD), tourists (B-1, B-2, VWP), or those who have stayed longer than permitted or entered the U.S. illegally and have no other status pending.

What is the H-2B Visa?

The H-2B visa is a temporary non-immigrant work visa for seasonal non-agricultural workers. It is valid for up to one year, with two one-year extensions available (up to a maximum of three years in the U.S. before the employee must return). A temporary labor certification from the Department of Labor (DOL) is required before filing, and timing is crucial in obtaining these visas.

Who qualifies for H-2B Visas?

The petitioner (the company) must establish that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work, and that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The need for the worker's services or labor must be temporary, regardless of whether the underlying job can be described as temporary.

For a one-time occurrence, the employer must prove that they did not employ workers to perform the service or labor in the past and will not need workers to perform in the future. For a seasonal need, the employer must prove that it is traditionally tied to a season of the year by an event or pattern and must be recurring. A peak load need requires the employer to regularly employ permanent workers to perform the services or labor at the place of employment but needs to temporarily supplement its permanent staff due to a seasonal or short-term demand. An intermittent need requires that the employer has not employed permanent or full-time workers to perform the services or labor and occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Guide for employees on how to obtain an H-2B visa:

We will help our employees each step of the process but here is a general information for you on the process.

1. Find an employer who is willing to sponsor you for an H-2B visa. The H-2B visa is for temporary non-agricultural workers, and your employer must demonstrate that there are not enough US workers who are able, willing, qualified, and available to do the temporary work.
2. Once your employer has established the need for H-2B workers, they will go through a series of steps to apply for the visa on your behalf. This includes registering with the Department of Labor, filing a job order with the State Workforce Agency, and preparing and filing the ETA-9142 form with the United States Citizenship and Immigration Services.
3. If your employer's application is approved, you will need to schedule an appointment with the US consulate closest to your home abroad. You will need to provide documentation such as your passport, a job offer from your employer, and proof of your ties to your home country.
4. Once you obtain the visa, you will be able to work in the US for the duration specified on the visa. It is important to note that the H-2B visa is temporary and only allows you to work in the US for a specific period of time.
5. During your time in the US, it is important to follow all visa regulations and maintain legal status. If you violate the terms of your visa, you may be subject to deportation and future visa restrictions.
6. If you are interested in returning to the US for future seasonal work, you may be eligible for a returning worker exemption. This exemption allows certain workers who have previously been granted an H-2B visa to return to the US without being subject to the annual visa cap.
7. Overall, obtaining an H-2B visa can be a complex process, but with the support of your employer and proper documentation, it is possible to work temporarily in the US.

Important Considerations for H-2B Visa Applicants:

• Do not apply if you have ever been in the US illegally.
• Beneficiaries cannot pay for any of the costs of applying for the H2B visa nor can the company be reimbursed for the costs afterward.
• Certification cannot be transferred to another employer.
• Employer must pay for transportation for each H-2B worker both to and from the place of employment.
• If transfer/extension, the employer must pay to the place of employment and to their home country.
• The new employer must pay for travel to their new place of employment if they are transferring from a current location to a new workplace.
• H-2B cap does not apply to spouses and children.
• Returning workers are not counted toward the cap.
• If the employee is terminated before the end of the requested work period, USCIS must be notified within two working days of the termination.
• If the employee fails to show up for work, USCIS must be notified within five days of the start date or at any time during the work period.

Obtaining an H-2B Visa (Employer Steps)

Step 1: Determine if H-2B visas are available

The number of H-2B visas available each year is capped, and the application process can be highly competitive. Employers should determine if visas are still available before starting the application process.

Step 2: Determine if your job description qualifies for an H-2B visa

To qualify for an H-2B visa, the job must be temporary, seasonal, or intermittent in nature. The employer must also show that there are not enough US workers available to perform the job. Employers should consult with an attorney to determine if their job description qualifies for an H-2B visa.

Step 3: Register with the Department of Labor (DOL)

Employers must register with the DOL's Chicago National Processing Center to establish the need for H-2B visas prior to filing with the State Workforce Agency. The registration process involves providing information about the job description and the number of employees needed.

Step 4: Submit a job order to the State Workforce Agency

Employers must submit a job order to the State Workforce Agency in the area of intended employment concurrent with filing for ETA-9142. The job order provides information about the job description and the number of employees needed.

Step 5: Prepare and file ETA-9142

Employers must prepare and file the ETA-9142 form with the United States Citizenship and Immigration Services (USCIS) after obtaining the prevailing wage determination. The form requires detailed information about the job description, the number of employees needed, and evidence that there are not enough US workers available to perform the job.

Step 6: File the I-129 form

Employers must file the I-129 form with the H-2B supplement form with USCIS. The form requires information about the beneficiary's qualifications, the temporary need for the worker, and acknowledgement of the employer's responsibility to pay the beneficiary's return transportation abroad if dismissed.

Step 7: Conduct recruitment

Employers must conduct recruitment to demonstrate that there are not enough US workers available to perform the job. This includes running an ad in a newspaper, contacting former US employees who were laid off in the last 120 days and were employed during the previous year, and submitting a recruitment report.

After the employer submits the recruitment report to the Department of Labor (DOL), the DOL will issue a labor certificate within a few days if the recruitment process was successful. Once the employer has the labor certificate, they can file a petition for the H2B visa with the U.S. Citizenship and Immigration Services (USCIS).

After USCIS receives the petition, they will issue a receipt notice within a few days that includes a receipt number. This number allows the employee to start the embassy process with the recruiting company.

If the H2B visa petition is approved, USCIS will send an approval notice to the employer, usually within 5 to 10 days after the receipt notice. Once the employer has the approval notice, the employee can go to the embassy or consulate for their visa interview or turn in their passport for the consular appointment.

Step 8: Schedule a consular appointment

Once USCIS approves the H-2B application, the employee must schedule an appointment with the US consulate closest to their home abroad. The employer must obtain a certification number and submit the paperwork to the Department of Homeland Security.

Step 9: Obtain a receipt

Once the paperwork is submitted, the employer will receive a receipt from USCIS. This means that the employer is before the cap, even if final approval has not been granted yet.