The H-2B visa is a temporary work permit for any type of qualifying full time non-agricultural work.
Three steps must be completed before hiring the foreign worker under the H-2B visa program.
Step 1 – Temporary Labor Certification. The employer receives approval of a temporary labor certification (TLC) from the US Department of Labor (DOL). This step should be completed in about 60 days. The employer must show it has tried to find US workers for a bona fide job opening, offering prevailing wages and working conditions. To ensure the accuracy of the test of the labor market, the TLC application cannot be filed more than 120 days before the intended start date of employment.
Step 2 – H-2B Visa Petition. The employer receives approval of an H-2B visa petition from the US Citizenship and Immigration Service (USCIS). The USCIS normally will approve an H-2B petition which has a valid TLC unless it finds the worker is not qualified or if the employer is insolvent or otherwise unable to employee the worker. This step can be completed in 15 days.
H-2B Visa Requirements
Temporary Labor Certification (TLC) Requirements
The TLC application is filed with the State Workforce Agency (SWA) — the state unemployment office. A TLC can cover only one occupation and one employer. Multiple occupations will require multiple TLCs. The SWA will review the application for compliance with the regulations, supervise the employer’s test of the labor market, and then forward the file with a recommendation to the US Department of Labor (DOL). The DOL will approve the TLC if it finds that
• the employer has not offered foreign workers higher wages or better working conditions (or has imposed less restrictions on foreign workers) than those offered to US workers;
• insufficient US workers are able, willing, qualified, and available at the time and place needed by the employer;
• employment of H-2B foreign workers will not adversely affect the wages and working conditions of similarly employed US workers.
When filing the TLC application, the employer will also provide a plan for recruitment of US workers, including a description of past and future recruitment efforts such as advertising in the newspaper and radio, posting a job order, etc., similar to other employers of comparable size in the area of employment. The SWA will review the plan and direct the employer to conduct recruitment to test the availability of US workers.
Terms of the Job Offer
The employer’s job offer must contain statements regarding the employer’s policies on housing, workers’ compensation insurance, use of tools, supplies, and equipment, meals, transportation, three fourths guarantee, rate of pay, records, deductions, and termination of the contract.
H-2B Visa Petition Requirements
After the DOL has approved the TLC, the employer files the H-2B visa petition with the Citizenship and Immigration Service (USCIS). The employer files the H-2B visa petition with the approved TLC, documents showing the H-2B worker’s qualifications, and a support letter. Only one H-2B petition is required if it covers one occupation and all H-2B workers will apply at the same Consulate overseas. Otherwise additional H-2B petitions may be required. The USCIS will approve the H-2B petition if it is convinced that the need for the H-2B workers is a one-time occurrence, seasonal, peak-load, or intermittent. The employer must agree to pay the reasonable costs of returning an H-2B worker abroad, if he or she is terminated by the employer before the end of requested period of stay. The H-2B numerical limit set by Congress is 66,000 per fiscal year. However, the USCIS may authorize up to 100,000 H-2B visa each year, assuming many visas will go unclaimed. The current count of approved H-2B visas is available at this link: http://www.uscis.gov.
H-2B Visa Stamp out Requirements
After the USCIS has approved the H-2B visa petition, the worker will go to an American Consulate to receive an H-2B visa stamp in his or her passport. The Consulate will normally approve the H-2B visa unless it determines there was some gross error in the approval of the TLC, or H-2B petition, or if it determines that the worker is an “intending immigrant.” The worker will be determined to be an intending immigrant if he or she has been in the US illegally, is under petition to become a US permanent resident, or does not have a residence in the home country.
Because government processing times vary and a case may have special circumstances, the H-2B beneficiary should not make any final plans such as starting or terminating employment or school, traveling to or from the United States, purchasing nonrefundable tickets, selling or buying property, signing or terminating a lease, shipping or storing personal goods, etc., until the H-2B visa has been issued.
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