H-2B Work Visa Requirements, Fees, And Application Process | AllLaw

Seasonal non-agricultural workers, both skilled and unskilled, may apply for an H-2B visa to the United States. Such visas are used for a wide variety of worker types, such as business trainers, entertainers, athletes, camp counselors, seafood processors, landscapers, ski instructors, and home attendants for terminally ill patients. However, you must have a job offer first, for a position for which there is a shortage of U.S. workers willing or able to take the job. And you must be able to show that you intend to return home at the end of your authorized stay.

The H-2B visa holder may bring along a spouse and children (unmarried, under age 21) to the United States. The dependents may attend school while in the United States, but may not legally work.

This article covers the key requirements, fees, and application process for the H-2B visa program.

In This Article

• What Are the Limits on How Many H-2B Visas Can Be Approved Each Year?
• Who Is Eligible for an H-2B Visa?
• What Is the H-2B Visa Application Process?
• How Long Can You Stay in the U.S. on an H-2B?
• If You Need Help

What Are the Limits on How Many H-2B Visas Can Be Approved Each Year?

The H-2B category is capped at66,000 visas per fiscal year, with allocations divided into two halves:

• 33,000 visas for jobs beginning October 1–March 31, and
• 33,000 visas for jobs beginning April 1–September 30.

Unused numbers from the first half of the year are transferred to the second half, but they do not carry over into the following fiscal year.

This category tends to bring in a lot of applications, meaning a visa might not be available to you in the year you apply. In light of that, however, the U.S. government sometimes makes more visas available to returning workers. (See 8 C.F.R. Section 214.2.)

Who Is Eligible for an H-2B Visa?

To qualify for an H-2B visa, your U.S. employer must meet the following requirements:

• The employer must have a need that is either:
  • seasonal (traditionally tied to a season of the year by an event or pattern and of a recurring nature)
  • one-time (a temporary event of short duration)
  • intermittent (meaning the employer doesn't employ permanent or full-time workers for the task, but occasionally or intermittently needs temporary workers to handle it short periods), or
  • peak load (meaning the employer has permanent workers to handle the task, but needs to supplement them temporarily due to a seasonal or short-term demand).
• The job time-frame must be for less than one year.
• There must be no qualified and willing U.S. workers available for the job.

The employee must meet the following H-2B visa requirements:

• You must have a valid job offer from a U.S. employer to do seasonal or temporary work.
• You must have the correct background and abilities for the job.
• You must intend to return home before the expiration date on the visa.

What Is the H-2B Visa Application Process?

Your U.S. employer must start the process, by advertising and recruiting for the job in an attempt to find U.S. workers instead of hiring you! If no adequate workers are found, the employer can apply to its local state workforce agency (SWA) for a temporary labor certification. The SWA will transfer the case to the U.S. Department of Labor (DOL) for a final decision on the labor certification.

After DOL approves the labor certification, your employer must file a visa petition on Form I-129 and submit it to U.S. Citizenship and Immigration Services (USCIS) and pay a fee. If you're already legally in the United States at this time, your employer can simultaneously ask that your status be changed to H-2B worker.

When USCIS approves the I-129 petition, applicants who are already in the United States and simultaneously received a change of status are good to start working.

If you're outside the United States, your next step is to apply for a visa through a U.S. consulate in your home country. See your local consulate's website for its application and appointment procedures. Or if you're from Canada, you can head straight to the United States port of entry with the documents described below.

Documents to Bring to Your Visa Appointment at the U.S. Consulate

The U.S. consulate will likely ask you to bring:

• A printout of the Form DS-160 that you filled out online.
• Notice from USCIS showing I-129 approval.
• Valid passport for you and each accompanying family member.
• One photo of each applicant, passport style.
• If your spouse and children will be accompanying you, documents showing the family relationship, such as birth and marriage certificates.
• Documents establishing your intent to leave the United States when your H-2B status expires, such as copies of a deed to a house or a lease for an apartment, letters from an employer saying your job will be waiting for you, and so on.

How Much Are the H-2B Visa Fees and Costs?

The H-2B visa costs include a filing fee paid by the employer for the I-129 Petition for a Nonimmigrant Worker. This varies by employer type and size, but is into the thousands of dollars in most cases.

In addition, the employer will need to provide or reimburse you for transportation and subsistence from the place from you're coming, whether in the U.S. or abroad. (See 20 C.F.R. § 655.20(j)(1)(i).)

How Long Can You Stay in the U.S. on an H-2B?

The initial H-2B visa is good for up to one year. If you complete at least half your expected time, the employer will pay your way home. (See 20 C.F.R. § 655.20(j)(1)(i).)

If the U.S. employer can show that it needs you for a longer time, and you can show that you still plan to return to your home country when required, the H-2B visa can be extended upon request in one-year increments. Such extensions can be hard to get, however. They're not automatic at all.

The maximum time you can stay in the U.S. with an H-2B visa is three years.

If You Need Help

Some employers will be able to help you with your entire H-2B visa application process, most likely if they regularly hire employees from outside the U.S. If your employer does not provide an attorney, consider hiring one yourself. The attorney can help you assess which visa category is most appropriate for your employment purposes and, if you apply for an H-2B, help you not only prepare the paperwork but try to get it submitted early enough that visas for that year won't have already run out when you apply.