2B or not 2B: The H2B Visa Solution for Employers seeking Temporary, Nonagricultural Workers

by Jen Green, Burch Law

The H2B visa option is an increasingly popular, yet still often overlooked, solution for employers needing to fill temporary labor needs. Often used in the construction or hospitality industries, this visa classification allows an employer to bring over several workers at once via a streamlined process (relative to most other employment-based visas).

The H2B, like other visa classifications, has its particular restrictions, which an experienced immigration attorney could guide you through. For example, the H2B can only be used for workers from designated countries, but the list of designated countries is quite long. Another key thing to remember about the H2B visa is that it is for temporary employment, and only for nonagricultural workers. Employers may use the visa to fill seasonal, peak load, intermittent, or one-time needs. A “season” can be surprisingly long for H2B purposes and is not clearly defined under the regulations. Basically, the employer needs to be able to show that the period where he doesn’t need the workers is predictable (for instance, during the dead of winter when work can’t be done). An experienced immigration attorney could help you understand how your work requirements fit into the H2B framework.

H2B visas can be extended in increments of one year, for a maximum stay of 3 years for a worker. But at the end of that period, the worker only must leave the USA for an uninterrupted period of 3 months before seeking readmission in H2B status. So, although the H2B visa does not provide a path to the green card, like some other “temporary” visa classifications it does allow for a basically indefinite stay in working status, with minor interruptions of mandated stays abroad. And the worker’s spouse and unmarried children under age 21 may come too – in H4 status; they just cannot work in the U.S.

The H2B classification currently has 66,000 visa numbers available each year, which are allotted in two groups of 33,000 each – the first 33,000 for the first half of the USCIS fiscal year, and the other 33,000 in the second half of that fiscal year. The 33,000 available visa numbers for the first half of fiscal year 2018 are already all taken. The H2B visa category, like most other U.S. visa categories, is oversubscribed, so employers should prepare to gather their worker and job information efficiently and be able submit it as soon as a new petition period opens. This involves careful timing and planning; the employer must submit a temporary labor certification application to the Department of Labor and obtain its certification before the employer can submit the H2B petition to the USCIS with the required documentation.

As you may perceive just from this brief overview, obtaining H2B visas for your temporary workers takes careful coordination of paperwork and timing; so employers could benefit from the help of an experienced immigration attorney to navigate the requirements and steps. If the H2B visa might help you solve your labor needs and you need help with the petition process, contact us. We’re here to help.