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About H2B Visa
Overview: The H-2B(non-agricultural temporary worker program) allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

H-2B visa is for non-agricultural temporary worker, different from H-2A Visa for temporary agricultural workers.

Period of Stay: initial stay of no more than 1 year, could be extended in increments of 1 year. The maximum period of stay is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Family: Spouse and unmarried children under 21 years of age could apply for H-4 non-immigrant visa. They do not have work authorization under H-4 status. They are also not counted against the annual H2B cap.

Green Card Intent: Dual Intent is not permitted. A foreign worker in H-2B nonimmigrant status for 3 years is required to depart and remain outside the United States for an uninterrupted period of 3 months.

H2-B Visa Cap
Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year. Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no "carry over" of unused H-2B numbers from one fiscal year to the next.
Statistics:Employers must use the Department of Labor's iCERT electronic filing system to file for an H-2B visa. But the agency underestimated the demand for H-2B visas for the second half of 2019, and iCERT crashed upon opening of the system on January 1, 2019. The Department of Labor reported receiving 30 times more user requests on that day than it did on the first day of filing the year before. Ultimately, the agency received more than 96,000 requests for the 33,000 H-2B visas available. Competition for H-2B visas seems to have grown since 2016 when Congress allowed the "returning worker" exemption to expire. That provision exempted H-2B workers from the cap if they had worked on an H-2B visa during at least one of the three previous years. Without the exemption, all potential H-2B workers are jockeying for the same 66,000 visas. In FY 2018, USCIS conducted the first-ever lottery to determine which H-2B petitions would be selected for adjudication.

H2-B Visa Cap Exemption
Once the annual 66,000 cap is reached, USCIS will only accept petitions for following H-2B workers who are exempt from the H-2B cap.
  • H-2B workers in the United States or abroad who have been previously counted towards the cap in the same fiscal year;
  • Current H-2B workers seeking an extension of stay;
  • Current H-2B workers seeking a change of employer or terms of employment;
  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam(11/28/2009-12/31/2019)
H-2B Visa extension and the spouse and children of H-2B workers holding H4 visa are not counted against H-2B Visa cap.

H-2B Program Process
  1. Employer Submits Temporary Labor Certification Application to the Department of Labor. Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).
  2. Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either DOL, the employer should file Form I-129 with USCIS. With limited exceptions, the original temporary labor certification must be submitted with Form I-129.
  3. Prospective Workers Outside the United States Apply for Visa and/or Admission. After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:
    • Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry;
    • or Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry.

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H-2B Visa Qualification
  1. The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
  2. The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  3. The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary.
The employer’s need is considered temporary if it is a(n):
  1. one-time occurrence: not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future
  2. seasonal need: traditionally tied to a season of the year by an event or pattern; and of a recurring nature.
  3. peakload need: needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand
  4. intermittent need: occasionally or intermittently needs temporary workers to perform services or labor for short periods

H-2B Visa Eligible Countries List
H-2B Visa program has the same list of eligible country list as H-2A program.

Effective Jan. 19, 2019, nationals from the following countries are eligible to participate in the H-2B program:

  • Andorra
  • Argentina
  • Australia
  • Austria
  • Barbados
  • Belgium
  • Brazil
  • Brunei
  • Bulgaria
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Croatia
  • Czech Republic
  • Denmark
  • Ecuador
  • El Salvador
  • Estonia
  • Fiji
  • Finland
  • France
  • Germany
  • Greece
  • Grenada
  • Guatemala
  • Honduras
  • Hungary
  • Iceland
  • Ireland
  • Israel
  • Italy
  • Jamaica
  • Japan
  • Kiribati
  • Latvia
  • Lichtenstein
  • Lithuania
  • Luxembourg
  • Macedonia
  • Madagascar
  • Malta
  • Mexico
  • Monaco
  • Mongolia
  • Montenegro
  • Mozambique
  • Nauru
  • The Netherlands
  • Nicaragua
  • New Zealand
  • Norway
  • Panama
  • Papua New Guinea
  • Peru
  • Poland
  • Portugal
  • Romania
  • Samoa
  • San Marino
  • Serbia
  • Singapore
  • Slovakia
  • Slovenia
  • Solomon Islands
  • South Africa
  • South Korea
  • Spain
  • St. Vincent and the Grenadines
  • Sweden
  • Switzerland
  • Taiwan*
  • Thailand
  • Timor-Leste
  • Tonga
  • Turkey
  • Tuvalu
  • Ukraine
  • United Kingdom
  • Uruguay
  • Vanuatu

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition.

If an employer want to request H-2B workers from both eligible and non-eligible countries, the employer should file two separate petitions to decrease possible delays.

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