If your company is struggling with staffing shortages, the H-2B visa program can help you recruit workers from other countries to fill vacancies that could take your business to the next level. This visa is well suited for a variety of temporary positions such as landscaping, snow removal, various construction roles, housekeeping, and temporary positions at golf courses, ski resorts, and hotels. To qualify for visas, a company needs to show that it seeks to fill temporary positions, and that it was unable to recruit sufficient U.S. workers. Below we outline some common questions about the program.

+ Can an individual apply for an H-2B Visa?

Individuals cannot apply for an H-2B visas without sponsorship from a U.S. employer. Individuals must either apply for jobs directly with U.S. employers that will sponsor H-2B visas or locate an ethical recruiter in their home country that can facilitate a connection with U.S. companies seeking H-2B workers.

+ When should I apply for H-2B visas?

Given the strict timelines for the H-2B process, you should contact our office at least 5 months prior to your date of need to ensure your paperwork can be prepared on time.

+ How do you demonstrate that your company has a temporary need?

An employer has to show that the position they seek to sponsor meets the legal definition of temporary need. The most common types of temporary need are the following: Peakload need: The employer must establish that: it regularly employs permanent workers to perform a role and needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand, and the H-2B workers will not become a part of the employer's regular operation. Seasonal need: The employer must establish that the work is traditionally tied to a season of the year by an event or pattern that is of a recurring nature and that there are period(s) of time during each year in which it does not need the services or labor. One-time occurrence: The employer must establish the following: 1) that it has not employed workers to perform the services or labor in the past and it will not need workers to perform the services or labor in the future, or 2) that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

+ How long may a company employ H-2B workers?

Generally, an H-2B worker may be employed for up to 9 months each year if the employer has a seasonal or peakload need.

An employer may request an H-2B visa for up to 3 years if the company has a “one-time need” for an H-2B worker.

+ Can H-2B workers be employed on a part-time basis?

No, they must be employed at least 35 hours per week.

+ Can I sponsor H-2B visas for citizens of any country?

Generally, H-2B workers must be citizens of specific countries. USCIS periodically publishes a list of countries eligible to receive H-2B visas. Currently, there are 84 countries on the list, including: Mexico, Argentina, Brazil, Canada, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Italy, Israel, Peru, South Africa, and Spain.

Click here for a list of eligible countries. Most recently, six additional countries were added to the list, including Haiti, pursuant to this announcement

+ Is there a minimum wage that I am required to pay H-2B workers?

H-2B workers have to be paid the prevailing wage, as determined by the U.S. Department of Labor. The wage varies depending on the work location. U.S. workers performing the same duties also have to be paid at least the prevailing wage, as all workers performing H-2B duties. Other Federal wage statutes, such as the overtime provisions of the Fair Labor Standards Act, also apply to H-2B workers in the same way as they apply to other U.S. workers.

+ What is the visa cap and how does it affect my application?

The government can only issue 66,000 H-2B visas per year. This limit is referred to as the “visa cap.”

33,000 visas are allotted to companies requesting start dates of October to March, and the remaining 33,000 visas are allotted to companies with start dates of April to September. Currently, demand for visas exceeds availability, so it is critical to observe deadlines to minimize the risk of capping out.

+ Is the employer required to pay for transportation of workers?

Yes. The U.S. employer is required by law to pay for the workers inbound and outbound transportation.

+ Is the employer required to pay for visa fees?

Yes. The Department of Labor prohibits passing on fees associated with the H-2B applications, such as application costs, attorney fees, recruitment fees, visa fees or other related fees to the H-2B worker.

+ Which industries can use the H-2B program?

Any industry can participate in the H-2B program, so long as the position is temporary. The H-2B lends itself well to roles in the following types of businesses:

• Landscaping and Groundskeeping Companies
• Golf courses and golf course maintenance companies.
• Ski resorts
• Hotels
• Restaurants
• Construction contractors
• Seasonal retailers
• Wedding venues
• Any other seasonal business

+ What is the process for requesting H-2B Visas?

You can trust our office to guide you through the entire H-2B application process, which requires several steps and compliance with various deadlines.

The first step involves filing a Request for a Prevailing Wage from the Department of Labor. In this step, we set out the job description and job terms that will govern the rest of the case.

Within 75-90 days of the date of need, an application must be made to the Department of Labor to demonstrate that:

1) the company has a temporary need for workers, 2) the H-2B positions are temporary, and 3) the workers will not become a part of your permanent workforce.

Upon review of the application, the Department of Labor will clear the company to begin recruitment of U.S. workers. Such recruitment includes opening a Job Order with the state, advertising the positions in the Department of Labor’s public job registry, and posting the job on the employer’s work premises or website. A recruitment report is then submitted to the Department of Labor, and a certification will be issued if the employer is unable to hire sufficient U.S. workers for its temporary positions.

Afterwards, an application must be made with US Citizenship and Immigration Services again demonstrating that the company’s need for the H-2B workers is temporary. It is at this stage that the company secures its visa numbers, therefore it’s critical to move efficiently through the application process before the Department of Labor.

Once all applications are approved, the workers will be eligible to present themselves to a U.S. Consulate abroad to apply for visas. Those granted visas (generally employees without prior immigration or criminal violations) will be allowed to enter the U.S. to work with your company for the season. If the workers you sponsored were already maintaining status in the U.S., you may request their transfer to your company upon approval of your petition, without applying for a visa abroad.

+ Can the workers I sponsor work for another company during the season?

No. H-2B visas are employer-specific. An H-2B visa only allows a workers to work for a company that has sponsored a visa on their behalf.

+ Can I change work locations or duties mid-season?

No. H-2B visas are issued for workers to engage in specific duties at specific locations. Workers cannot perform tasks that were not disclosed on the applications. In addition, workers can only work within the counties disclosed on the application.

+ Can H-2B workers bring their immediate family to the United States?

Yes, spouses and children under 21 may accompany the H-2B workers for the duration of their stay utilizing H-4 visas. Dependents may study in the U.S. but are not permitted to work while in H-4 status.

+ Does Maria Saenz Law provide services to companies all over the United States?

Yes. Maria Saenz represents clients around the country and can handle case preparation for H-2Bs and most other immigration matters remotely.