H-2B Visa, Explained

Eligibility

For Employers:

• The job must be temporary, lasting no more than one year.
• The employer must prove there are not enough U.S. workers willing, able, or qualified for the job.
• The employment must not adversely affect wages or working conditions of similarly employed U.S. workers.

For Workers:

• Must have a valid job offer from a U.S. employer.
• Must meet the qualifications required for the position.
• Must demonstrate intent to return to their home country after the visa expires.
• Must be a national of a country included in the U.S. Department of Homeland Security’s H-2B Eligible Countries List. This list is updated annually and includes countries with a proven record of cooperating with U.S. immigration regulations.

Understanding the H-2B Visa Cap

The H-2B visa program is subject to an annual numerical cap set by the U.S. Congress. This limit determines how many H-2B visas can be issued in a fiscal year.

Annual Cap:

The cap is set at 66,000 visas per fiscal year.

• 33,000 visas are allocated for workers starting employment in the first half of the fiscal year (October 1 to March 31).
• 33,000 visas are allocated for workers starting employment in the second half of the fiscal year (April 1 to September 30).

Exemptions from the Cap

• Workers who previously held H-2B status and are applying for an extension with the same employer.
• Certain nationals from specific countries under special agreements or government decisions.
• Workers employed by fish roe processors, fish roe technicians, or in seafood industries.

Supplemental Visas

In response to labor shortages, Congress or the Department of Homeland Security (DHS) occasionally authorizes additional visas beyond the cap. These supplemental visas are often limited to workers from specific countries or those returning to the program.

Timing and Demand

• The cap is typically reached quickly, especially for the second half of the fiscal year.
• Employers should submit petitions as early as possible to secure a spot within the cap.

Processing Time

The H-2B visa processing time is on average 3-6 months, but it can take longer depending on your situation. Here’s a breakdown of the steps:

• Temporary Labor Certification Approval (2-3 months):
  • The employer submits Form ETA-9142B to the Department of Labor (DOL) to certify the need for temporary foreign workers.
  • The DOL reviews the application, including the recruitment efforts to hire U.S. workers.
• Petition Filing with USCIS (1-2 months):
  • After receiving labor certification, the employer files Form I-129 (“Petition for a Nonimmigrant Worker”) with USCIS.
  • USCIS processes the petition and, if approved, issues a Notice of Approval (Form I-797).
• Visa Application at a U.S. Consulate (2-4 weeks):
  • Once the petition is approved, the worker applies for the H-2B visa at a U.S. embassy or consulate in their home country.
  • This step includes completing Form DS-160, paying the visa fee, and attending an interview.
• Travel to the U.S. (Varies):
  • If the visa is approved, the worker can make travel arrangements and begin employment on the specified start date.

Cost

The cost of the H-2B visa varies from $840 to $3,365 depending on certain factors, including how large your company is, whether or not you choose to name the employee in the application, and whether or not you choose premium processing. Below is a breakdown of H-2B costs:

Worker Costs:

• Form DS-160 (Nonimmigrant Visa Application): $185 filing fee, payable to the U.S. Embassy or Consulate.
• Other Costs: Workers are responsible for travel and related expenses to the U.S. (Employers may cover some expenses as required under specific labor laws).

How to Apply

The H-2B application process involves several steps, with specific responsibilities for both the employer and the worker:

• Employer Applies for Temporary Labor Certification
  • Submit Form ETA-9142B: The employer files this form with the U.S. Department of Labor (DOL) to demonstrate the need for a temporary foreign worker.
  • Prove Recruitment Efforts: The employer must show they made reasonable efforts to recruit U.S. workers. This often involves posting job ads and conducting interviews with potential candidates.
  • Certification Issuance: If approved, the DOL issues a Temporary Labor Certification.
• Employer Files Form I-129
  • Prepare the Petition:
    • Submit Form I-129 (Petition for a Nonimmigrant Worker) to USCIS.
    • Attach the Temporary Labor Certification from the DOL and evidence supporting the petition (e.g., proof of the job’s temporary nature).
  • Pay the Required Fees: Include the filing fee and fraud prevention fee.
• Worker Applies for the H-2B Visa
  • Complete Form DS-160:
    • Submit the online Nonimmigrant Visa Application form.
    • Pay DS-160 visa application fee.
  • Schedule a Visa Interview:
    • Workers must attend an interview at the U.S. embassy or consulate in their home country.
    • Bring required documents, including the DS-160 confirmation page, a valid passport, a photo, and the USCIS petition approval notice (Form I-797).
• Worker Arranges Travel to the U.S.
  • Visa Approval: Once the visa is approved, the worker can arrange travel to the U.S. to begin employment.
  • Arrival at a U.S. Port of Entry: The worker presents their visa and other documentation to Customs and Border Protection (CBP) officers for entry.

FAQs