H-2B Visa Shortage Workers (Non-Agricultural)

The H-2B nonimmigrant program permits employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work, which may be one-time, seasonal, peak load or intermittent. There is a 66,000 per year limit on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (October through September). The process for obtaining H-2B certification is similar to, but less extensive and time consuming, than permanent certification.

In the case of the H-2B certification, the DOL decision is only an advisory to USCIS. The certification request is made by the employer using an Application for Alien Employment Certification and multiple openings of the same job and rate of pay may be on the same application. The certification is issued to the employer, not the worker, and is not transferable from one employer to another or from one worker to another. To allow time for processing delays and correction of application errors, the employer should file for H-2B at least 60 days, but not more than 120 days before the worker is needed.

Qualifying Criteria:

  • The job and the employer’s need must be one time, seasonal, peak load or intermittent;
  • the job must be for less than one year; and
  • there must be no qualified and willing U.S. workers available for the job.

Before filing this petition the U.S. employer must first apply for a temporary labor certification from the Department of Labor to demonstrate that U.S. workers are not available and that wages and working conditions meet regional standards. The U.S. employer should file the Form I-129 petition with:

  • Either an original single valid temporary labor certification from the Department of Labor (or the Governor of Guam if the proposed employment is solely in Guam), indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
  • An original notice from such authority stating that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and
  • Copies of evidence, such as employment letters and training certificates, demonstrating that each named alien meets the minimum job requirements stated in the certification.

An employer who wishes to hire workers under the H-2B program should speak with a qualified immigration attorney since H-2B rules and procedures are constantly changing.