The H-2B nonimmigrant program permits
employers
of foreign workers to come to the U.S. and perform temporary
nonagricultural
work, which may be one-time, seasonal, peak load or
intermittent.
The process requires an approved Labor Certification in
which the
employers must show that U.S. workers are unavailable to fill
the position
before the visa will be issued. There is an annual cap
of 66,000
visas per year. The maximum authorized period of stay is one
year therefore
the job offer must be for less than one year. The visa
may be extended
for a total of three years. Extension applications require
another Labor
Certification, and demonstrate that the initial authorization
period is
insufficient.
Either skilled or unskilled workers may
be employed on an H-2B
visa. The only workers
who are specifically
excluded are
- foreign medical
graduates
seeking to
perform work in medical fields and
- agricultural
workers.
The visa is also
often used for entertainers and
athletes who do not
meet the requirements of the O and P visa
categories.
Petitions for H-2B
status may be filed
by U.S. employers or their agents.
U.S. agents must
be authorized to
file the petition and accept service of process
in the U.S. The
agent can file petitions for
self-employed aliens
and function as the
employer, multiple employers and act as
a representative
of the employer and
the alien, and cases involving
foreign employers.
When the H-2B worker
is self-employed, there must be a contract
between the agent
and the worker specifying the
wages and terms and
conditions of employment.
The agent must also provide a
complete itinerary
of the planned employment.
When numerous employers are involved,
the agent must provide
the dates of the proposed employment,
the name and address
of the employers,
and the locations where the
work will be performed and
a contract between the employer and
the alien.
When a foreign employer
is petitioning
for the services of an H-2B worker, the agent must
submit
the employment
contract between the worker and the employer, as well
as evidence
of the agent’s
authority
to act on behalf of the employer.
The most significant restrictions
on the H-2B
category is the requirement
that the
need for the foreign worker is temporary
and not permanent.
The
Department
of
Labor recognizes four situations in which there is
a temporary
need
for workers: recurring seasonal need,
intermittent
need, peak-load need, and
need
based on a one-time occurrence. A labor certification
by
the Department
of
Labor (DOL) is required for the INS to issue
an
H-2B visa. The DOL must determine that there
are
no unemployed, qualified U.S. workers
available
for the position in the geographical location of the
proposed
employment,
and that employment of
the
foreign national will not adversely
affect
the wages or working conditions of U.S. workers. The
DOL
will
request that the employer conduct a recruitment
campaign
and forward the report
to
the DOL. If the DOL is satisfied that there are no
qualified
persons
in the U.S. they will certify the LCA
and
then the H2-B petition may be sent
to
USCIS for approval and Consular processing. Travel Costs Upon Dismissal During
H-2B Period:
If an H-2B employee is dismissed before the end of their authorized stay
the employed must bear the reasonable cost of returning the alien home. Any
dismissal is covered, even one for cause. The exception is when the alien voluntarily
quits.
For more information see:
http://www.workforcesecurity.doleta.gov/foreign/h-2b.asp |
