The H-2B visa is one of two visas within the H-2 temporary work visa program. While the H-2A visa is designed specifically for temporary agricultural workers, the H-2B visa is designed for temporary workers in non-agricultural professions.
The H-2B visa program is used by a wide range of employers who require foreign workers for a variety of professions. Unlike the H-1B visa, which is designed for highly skilled professionals, the H-2B visa program attracts a wider range of applicants for positions of all skill levels.
Who Qualifies for the H-2B Visa?
Generally, the H-2B visa program is designed to help U.S. employers find employees in professions that experience sudden demand or where employers often struggle to find U.S. employees. Some of the professions and industries typically available through the H-2B visa program include:
- Hospitality and Tourism
- Cruise Ships
- Resorts and Theme Parks
- Golf Courses
- Maintenance and Janitorial
- Ski Resorts
- Restaurants and Bars
- Retail Stores
There’s one major difference between the H-2B and H-2A visa programs (aside from the agricultural versus non-agricultural requirement): there’s a cap on the number of H-2B visas awarded per year. The United States has assigned a cap of 66,000 visas per fiscal year, while the H-2A visa has no such cap.
H-2B Visa Requirements
Both the employer and the employee need to meet certain requirements in order to qualify for the H-2B visa program.
H-2B Visa Requirements for Employers
- Employers must prove they have advertised employment to U.S. employees but have not been able to find an adequate number
- Employers must also prove that hiring foreign workers will not negatively affect wages and working conditions for U.S. workers
- Finally, employers must prove that workers are filling temporary positions – not long-term positions
In order to verify these three requirements, the employer of the H-2B visa applicant is required to obtain a Temporary Labor Certification from the Department of Labor. To obtain this certificate, you will need to demonstrate proof of all of the above requirements. You will also need to take responsibility for certain aspects of worker health and safety, including all of the following:
Transportation: If the job requires employees to travel a significant distance away from their place of residence, then employers are required to provide transportation. If the employer does not provide transportation, then the employer must reimburse the employee at the end of the employment contract.
Housing: If the job requires employees to be so far away from home that they cannot reasonably return home after a workday, then the employer needs to provide housing to employees. Housing needs to be safe and comfortable. If the employer is not providing meals to employees, then the employer needs to provide cooking facilities for employees.
Fair Wages: The employer needs to pay H-2B visa applicants the same wages they would pay a U.S. worker. In some areas, that’s the equivalent to minimum wage. In other areas, you may need to exceed the minimum wage. Check Department of Labor guidelines for your area to ensure you’re paying a fair hourly wage.
H-2B Visa Requirements for Employees
Employees also need to meet certain requirements, including all of the following:
- A valid job offer from a U.S.-based employer,
- Proof of intent to return to your home country after the H-2B visa expires
You must also be a citizen of one of the countries listed below to qualify for an H-2B visa:
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- The Netherlands
- New Zealand
- Papua New Guinea
- The Philippines
- San Marino
- Solomon Islands
- South Africa
- South Korea
- St. Vincent and the Grenadines
It is possible in some situations to hire an employee from a country that is not on the list above. In that case, you must file a written request to the Department of Homeland Security. You are required to provide valid documents for the prospective H-2B visa applicant. You are also required to prove that hiring a foreign worker will have a net positive effect on the United States. The DHS will then process the application and consider adding the applicant’s country of origin to the list above.
How to Apply for the H-2B Visa as an Employer
In order to bring an H-2B visa applicant to the United States, you will need to meet certain qualifications as an employer. Those qualifications include everything listed below.
Department of Labor Certification
You are required to get certified with the Department of Labor (DOL) and acquire a Temporary Labor Certification. This is a certification proving that you are paying a fair wage to a foreign worker and that you need the worker for a temporary job. Forms include:
Form ETA-9155: This is the application for H-2B visa program registration. You must file it no more than 150 and no fewer than 120 days before the applicant is needed.
Form ETA-9141: This form guarantees that you’re paying the foreign worker the same wages you would pay a U.S. worker in that situation.
Form ETA-9142: This is the application for Temporary Employment Certification. You must file the form no more than 90 days and no fewer than 75 days before the worker is needed at your job site in the United States.
Employers bringing workers to the United States under the H-2B visa program also need to meet other requirements, including:
Proof of Temporary Employment: You cannot bring an H-2B visa applicant to the United States for long-term employment. The job must be temporary – say, a seasonal job that experiences a rush of customers every summer.
Seasonal Need: The job can be seasonal in nature. That doesn’t necessarily mean the H-2B visa applicant has to work in a lakeside resort or ski resort. It can mean the H-2B visa applicant is covering permanent employees who are on vacation – say, if employees frequently go on vacation from November to December for the holiday season.
Peak Load Need: The job may qualify for the H-2B visa program if there is a certain peak load need at a specific time of year. The job may be staffed by permanent, U.S. workers during times of normal load, but employers may need to hire temporary foreign workers during peak load times.
Evidence of Recruitment to U.S. Employees: To receive the Department of Labor certification, the U.S. employer needs to demonstrate that they advertised the position to workers in the United States. You might need to show proof that you ran a newspaper, television, or radio ad, for example. You need to advertise the job position to U.S. employees up to 21 days before your foreign H-2B visa worker is expected to arrive in the country.
After sending all of this documentation to the Department of Labor, you should receive a Temporary Labor Certification that allows you to bring a foreign worker to the U.S. under the H-2B visa program.
United States Citizenship and Immigration Services (USCIS) handles petitions from U.S. employers to bring temporary workers to the United States. You need to file a petition to USCIS using form I-129. This petition must be filed no more than 6 months and no fewer than 45 days before the employer needs employees.
If your USCIS petition is successful, then you will receive form I-797. This form is needed for the H-2B visa applicant to complete the application process.
How to Apply for the H-2B Visa as an Employee
Applying for an H-2B visa as an employee is straightforward. The process will be familiar to anyone who has applied for a temporary, non-immigrant visa to the United States. Here’s the process:
Step 1) Complete Form DS-160: Form DS-160 is the standard non-immigrant visa form for visitors to the United States. The form is accessible through the website of your local U.S. embassy.
Step 2) Schedule your Visa Interview: After completing form DS-160, you will need to schedule a visa interview at your local U.S. embassy or consulate.
Step 3) Gather Documents: Before your interview, you will need to gather specific documents together to ensure your interview goes smoothly. You will need a valid passport, for example, and a photograph meeting the visa photo requirements. You will also need a copy of your job offer from the U.S. employer, details of the job, and copies of forms I-797 and I-129 from USCIS (which should have been sent to your employer).
Step 4) Attend your Interview: Your fingerprints may be taken prior to the interview. Then, your interview will begin. The interviewer will determine that the information on your application is correct. The interviewer also wants to ensure you intend to return home once your visa has expired.
If the interview is successful, then you will be granted your H-2B visa. You can arrive in the United States on the date your visa is scheduled to begin.
How Long Does My H-2B Visa Last?
The H-2B visa is a temporary visa that allows you to remain in the United States for a maximum of one year. This visa is specifically designed for temporary foreign workers in the United States. It’s not designed to fulfill long-term employment needs.
Typically, your I-797 form will state the date you are required to leave the United States. This might be sooner than one year. Pay attention to that date. The H-2B visa is not awarded for longer than one year.
It is possible to get an extension with an H-2B visa. You can apply for an extension twice, up to a maximum stay in the United States of three years. Extensions are awarded for up to one year at a time.
Once your H-2B visa is complete, you are required to return to your home country. You must remain in your home country for a minimum of three months before applying for an H-2B visa once again.
Can I Get a Green Card or Change My Status on an H-2B Visa?
The H-2B visa is not typically used to immigrate to the United States or seek a green card. However, there are certain situations where an H-2B visa holder can change his or her status while working in the United States.
For example, if the employee finds a new employer in the United States, then the employee may qualify for a different visa. The employer might file a request for the same H-2B visa. Or, they could request an H-2A visa for skilled professionals.
Certain H-2B visa holders can also receive a green card when sponsored by a family member or employer in the United States.
Why Was My H-2B Visa Denied?
An H-2B visa can be denied for any of the following reasons:
- The U.S. employer failed to prove adequate working conditions, fair wages, or other requirements
- The Department of Labor did not certify that the employment was temporary
- The employer or employee failed to submit paperwork on time
- The employer failed to attempt to recruit American workers
- The employer was previously caught violating H-2B visa terms and conditions
Can I Bring Dependents to the United States on an H-2B Visa?
Yes, you can bring dependents to the United States on an H-2B visa – just like you can with most work visas.
In this case, your dependents qualify for an H-4 visa. That H-4 visa remains valid throughout your work term in the United States. Your H-4 visa dependents can arrive in the country with you or after you. They must leave the United States before the expiry date of their H-4 visa.
The following two groups qualify for an H-4 dependency visa under the H-2B visa:
- Children under 21 years of age
By following the guide above, you can ensure your H-2B visa application process moves forward as smoothly as possible.