H-2B Temporary Worker Visa

The H-2B foreign national is defined as one who has a residence in a foreign country which s/he has no intention of abandoning and who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country. It does not include graduates of medical schools coming to the United States to perform services as members of the medical profession.

An annual cap of 66,000 exists as well as the requirement that the sponsoring employer covers the cost of return transportation abroad if the H-2B worker is dismissed before the expiration date of his/her H-2B petition approval.

The H-2B worker must maintain a foreign residence and be seeking only temporary entry to the United States. The service or labor that the H-2B worker seeks to provide must also be temporary. The petitioning employer must demonstrate to the Department of Labor (“DOL”) that it has been unable to locate a qualified and available U.S. worker to provide such service or labor.

H-2B visa petition is limited to a maximum period of one year. Although extensions are theoretically possible, they require an employer to repeat the temporary labor certification process and file a petition for extension of stay.

The U.S. Citizenship & Immigration Services (“USCIS”) has indicated that the need for H-2B services or labor should be a one-time occurrence, or to meet a seasonal, peak-load, or intermittent need. For example, the USCIS has approved peak-load petitions for seasonal workers in the hospitality industry. The USCIS has also approved petitions for engineer work during a peak phase of production, provided they do not become part of the employer’s regular operations.