An Introduction to H-2B Visas
While some companies experience fairly steady traffic flow and staffing needs throughout the year, others have to handle large fluctuations in need. Many companies cannot appropriately fill such seasonal staffing requirements with local hiring efforts. Luckily, H-2B visas are available, providing both essential support for American companies and vital job opportunities for foreign workers.
In today’s article, we provide a short introduction to the H-2B visa program. Throughout this blog post, we will answer the following questions:
- What are H-2B visas?
- Do H-2B visas have annual caps?
- What countries are eligible for H-2B visas?
- What are the differences between H-1B and H-2B visas?
- Can my company apply for an H-2B visa?
- What work conditions do H-2B visas cover?
As with any immigration concern, the H-2B sponsorship and application process is intricate and competitive. H-2B workers supply critical staffing for companies across the United States (U.S.). If you are unsure if you qualify for an H-2B visa, contact an expert immigration attorney as soon as possible. The lawyers at Davis & Associates are experienced with business immigration and can help you today. For your convenience, initial consultations with our attorneys are always free.
The Basics of H-2B Visas
H-2B visas are nonimmigrant visas, meaning they are awarded on a temporary basis. Certain employers can apply for H-2B visas to help their companies manage large variations in demand or staffing needs. H-2B visas do not allow companies to replace U.S. workers or fill permanent positions. They only help with seasonal or unexpected busy periods. After the expiry of their H-2B visa, all visa holders must return to their home country.
H-2B visas cannot be utilized to fill positions in agriculture. In fact, the USCIS specifically states that these visas are “non-agricultural.” There is a special class of visas dedicated to help support seasonal agricultural needs – H-2A visas.
For more information about H-2A and H-2B visas, visit the United States Citizenship and Immigration Services (USCIS).
Like many other types of visas, the USCIS caps how many people can utilize H-2Bs annually. The U.S. government allocates a total of 66,000 H-2B visas every fiscal year. Allocations further split to 33,000 each half-year (October 1 – March 31 and April 1 – September 30). Annual caps mean that only so many people can enter the U.S. via H-2B visas each year. Because of annual limits, there is a high level of competition for H-2B visas.
Foreign nationals from certain countries are not eligible for the H-2B visa program. Every year, the USCIS publishes a list of nations it considers eligible. For example, countries like China, India, and Russia are typically not included on the list, meaning that citizens of these nations cannot receive H-2B visas. You can read more on the USCIS’s website, where a new eligibility list was posted in January 2019.
H-2B Visas vs. H-1B Visas
Some people may confuse H-2B visas with the exceedingly popular H-1B visa. But, it is important to note that these two types of visa are not interchangeable and solve different problems. H-1B visas require applicants to have a specific skillset and education, while H-2B visas have no such requirements. Further, H-2B positions typically fill very temporary employment needs while H-1B visa holders stay for periods of 3-6 years. While H-2B beneficiaries can technically stay for up to 3 years, the stay aligns most often with seasonal or temporary work.
When Can a Company Employ H-2B Workers?
Companies can petition for H-2B workers under certain strict conditions. The USCIS lists full descriptions on its website, though you can read summary information below. Most importantly, all H-2B needs must be temporary – they cannot turn into permanent roles or positions. Additionally, no H-2B worker or position can displace U.S. workers or employees.
Companies can petition to hire H-2B workers to cover unpredictable, temporary circumstances. In order to utilize the program, though, companies must prove that the need for workers is both temporary and will not repeat in the foreseeable future. Examples of one-time occurrences include a temporary vacancy in an otherwise permanent role or workflow needs that have not occurred before and will not occur again. In order to hire H-2B workers, companies will need to prove that the foreign employees will not displace or replace any American workers.
“Peak-Load Need” happens when a company experiences an unpredictable time of heightened staffing needs. In order to qualify for the H-2B program, companies must only be supplementing workers to help full-time workers due to either seasonal requirements or an unpredictable influx of work. Any company participating also cannot utilize the program as a regular employment method.
Sometimes, critical staffing needs can arise in an intermittent yet unpredictable basis. Companies can utilize H-2B workers to assist during these times, though they cannot employ any full-time American employees within similar roles.
The most straightforward use of H-2B visas, seasonal need is a predictable rise in demand requiring supplementary workers. The USCIS has strict definitions of “seasonal.” Qualifying examples are those peak time periods driven by physical seasons, events (concerts, festivals), or any other repetitive yearly occurrences. Examples of companies that may use seasonal need H-2B visas include amusement parks or beach businesses.
Companies cannot utilize seasonal H-2B employees to fill regular employees’ vacation time. Seasonal usage also cannot be unpredictable or subject to change.
Considering Any Visa?
If you are considering any type of visa, your greatest support will be a qualified immigration attorney. Legal counsel increases your odds of overall success. This is because your lawyer can help you ensure that you meet all requirements and deadlines. Further, they can complete paperwork on your behalf, protecting you from errors that could lead to delays or outright denials.
Companies hoping to sponsor H-2B workers can benefit greatly from qualified legal counsel. The application and sponsorship process is often complicated and confusing. Despite this, the payoff is worth it – H-2B workers provide essential support during times of high need.
Davis & Associates proudly serves individuals, families, and companies in Houston. We are a full-service immigration law firm with a qualified, knowledgeable, and caring team. Our immigration attorneys are experts in their fields and will eagerly protect your rights. Contact us today to schedule a free initial consultation!