H 2b Temporary Non Agricultural Workers

H-2B Temporary Non-Agricultural Workers

The H-2B  program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

Topics:

Who May Qualify for H-2B Classification?
H-2B Cap
H-2B Program Process
H-2B Returning Worker Program for Fiscal Year 2016
H-2 Eligible Countries List
Period of Stay
Family of H-2B Workers
Employment-Related Notifications to USCIS
Fee-Related Notifications to USCIS

Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
  • One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
    • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
    • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

OR

  • Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
    • Traditionally tied to a season of the year by an event or pattern; and
    • Of a recurring nature.

Note: Employment is not seasonal if the period during which the service or labor is needed is:

  • Unpredictable;
  • Subject to change; or
  • Considered a vacation period for the employer’s permanent employees.

OR

  • Peakload need – A petitioner claiming a peakload need must show that it:
    • Regularly employs permanent workers to perform the services or labor at the place of employment;
    • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
    • The temporary additions to staff will not become part of the employer’s regular operation.

OR

  • Intermittent need – A petitioner claiming an intermittent need must show that it:
    • Has not employed permanent or full-time workers to perform the services or labor; and
    • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

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H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number of foreign nationals who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, and on workers who are exempt from it, see the “Cap Count for H-2B Nonimmigrants Web page.

H-2B Program Process

  • Step 1: Petitioner submits temporary labor certification application to DOL.  Before requesting H-2B classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).*  For further information regarding the temporary labor certification application requirements and process, see the Foreign Labor Certification, Department of Labor and Foreign Labor Certification, Guam Department of Labor  Web pages.
  • Step 2: Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)
  • Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approved  Form I-129, prospective H-2B workers who are outside the United States must:
    • Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
    • Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.

*Note:  If you are petitioning for one or more Canadian musicians that will be employed within a 50 mile radius from the U.S.-Canadian border for 30 days or less, you may skip Step 1 in the H-2B process.

H-2B Returning Worker Program For Fiscal Year 2016

Effective Dec. 18, 2015 , H-2B workers identified as “returning workers” are exempted from the fiscal year (FY) 2016 annual H-2B cap of 66,000 visas.

A returning worker is defined as an H-2B worker who was previously counted against the annual H-2B cap of 66,000 visas during FYs 2013, 2014, or 2015. This means:

  • In general, if you (the employer) submit a petition requesting an employment start date in FY 2016 (from Oct. 1, 2015 – Sept. 30, 2016) for an H-2B worker, the H-2B worker can only be considered a returning worker if he or she had been previously issued an H-2B visa or provided H-2B status between Oct. 1, 2012, and Sept. 30, 2015.
  • If the prospective worker is in the United States in H-2B status and is seeking to extend his or her stay, change employers, or change the terms and conditions of employment, then the worker would not be counted toward the H-2B cap and you would not need to request that the person be classified as a returning worker.
  • Any prospective H-2B worker who does not qualify as a returning worker will be subject to the FY 2016 H-2B cap unless he or she has previously been counted toward the H-2B cap or is cap-exempt.

Under this legislation, the returning worker program only applies to petitions pending or approved on or after Dec. 18, 2015, requesting named H-2B workers with an employment start date beginning in FY2016.

RETURNING WORKER Filing Requirements

In addition to the current rules regarding the filing and processing of the Form I-129, Petition for a Nonimmigrant Worker, the following additional requirements are applicable for H-2B returning workers:

  • Certification: In the petition, you (the employer) must include the H-2B Returning Worker Certification . This certification must be signed by the same person who signed Part 7 of Form I-129. The certification states: “As a supplement to the certification made on the attached Form I-129, Petition for a Nonimmigrant Worker, I further certify that the workers listed below have been issued an H-2B visa or changed to H-2B status during one of the last three (3) fiscal years.”
  • Named Workers: The H-2B Returning Worker Certification must include the full name of the returning worker. If the returning worker is in the United States and you are petitioning to change his or her status to H-2B, then it may be in your interest to include evidence of previous H-2B admissions, such as a copy of the worker’s visa, to prevent processing delays.
  • Multiple Workers: A single petition may be filed on behalf of more than one worker. However, any returning workers must be listed on the H-2B Returning Worker Certification. For multiple named workers, “Attachment 1” to Form I-129 (pages 35 and 36) must also be completed and included. It is recommended that petitions for returning workers be filed separately from petitions for new H-2B workers.
  • If the petition is approved: The U.S. Consulate may deny a visa or U.S. Customs and Border Protection (CBP) port inspector may refuse admission if workers cannot be confirmed as returning workers, or are otherwise ineligible for admission or visa issuance. DHS and Department of State will work together to confirm that all certified returning workers qualify for the program.

Petitioners: You may request to designate H-2B workers as returning workers if you named beneficiaries who meet the definition of returning workers on an H-2B petition that was pending or approved on or after Dec. 18, 2015, but did not include the required certification. Submit the H-2B Returning Worker Certification with a copy of your Form I-797 receipt notice to the address where you filed the petition no later than March 4, 2016. Write “Attn: H-2B Supervisor” on the envelope. This certification must meet the signature and named worker requirements listed above.

Each petition must include a temporary labor certification (TLC) from the Department of Labor (DOL). The process for TLCs is described on the DOL website at http://www.dol.gov/index.htm. USCIS will accept a copy of the TLC in those cases where the original TLC has previously been accepted by USCIS.

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H-2B Eligible Countries List

Except as noted below, H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2016, nationals from the following countries are eligible to participate in the H-2B program:

  • Andorra
  • Argentina
  • Australia
  • Austria
  • Barbados
  • Belgium
  • Belize
  • Brazil
  • Brunei
  • Bulgaria
  • Canada
  • Chile
  • Colombia
  • Costa Rica
  • Croatia
  • Czech Republic
  • Denmark
  • Dominican Republic
  • Ecuador
  • El Salvador
  • Estonia
  • Ethiopia
  • Fiji
  • Finland
  • France
  • Germany
  • Greece
  • Grenada
  • Guatemala
  • Haiti
  • Honduras
  • Hungary
  • Iceland
  • Ireland
  • Israel
  • Italy
  • Jamaica
  • Japan
  • Kiribati
  • Latvia
  • Lichtenstein
  • Lithuania
  • Luxembourg
  • Macedonia
  • Madagascar
  • Malta
  • Mexico
  • Monaco
  • Montenegro
  • Nauru
  • The Netherlands
  • New Zealand
  • Nicaragua
  • Norway
  • Panama
  • Papua New Guinea
  • Peru
  • The Philippines
  • Poland
  • Portugal
  • Romania
  • Samoa
  • San Marino
  • Serbia
  • Singapore
  • Slovakia
  • Slovenia
  • Solomon Islands
  • South Africa
  • South Korea
  • Spain
  • Sweden
  • Switzerland
  • Taiwan*
  • Thailand
  • Timor-Leste
  • Tonga
  • Turkey
  • Tuvalu
  • Ukraine
  • United Kingdom
  • Uruguay
  • Vanuatu

* With respect to all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition. (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.)

The Secretary of Homeland Security may consider adding a country to the Eligible Country List upon receiving a recommendation from DOS or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A status, or another interested party or parties. When designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to:

  1. The country’s cooperation with issuing travel documents for the citizens, subjects, nationals and residents of that country who are subject to a final order of removal;
  2. The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country;
  3. The number of orders of removal issued and executed  against citizens, subjects, nationals and residents of that country; and
  4. Other factors as may serve the U.S. interest. (See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1)).

If you want DHS to consider adding a country to the Eligible Country List, send a written request to DHS’s Office of Policy, or DOS at a U.S. embassy or consulate. Country listings are valid for one year. DHS may add a country to the Eligible Country List at any time if the Secretary of Homeland Security determines that the country is eligible.

Note: If you request H-2B workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays in completing processing of your request for H-2B workers.

Period of Stay

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification.   H-2B classification may be extended for qualifying employment in increments of up to 1 year each.   A new, valid temporary labor certification covering the requested time must accompany each extension request.  The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant.  Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit.  See  the Calculating Interrupted Stay for H-2 Classifications Web page for additional information.

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Family of H-2B Workers

Any H-2B worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.  Family members are not eligible for employment in the United States while in H-4 status.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:

  • No show: The H-2B worker fails to report to work within 5 work days of the latter of:
    • The employment start date on the H-2B petition; or
    • The start date established by the employer;
  • Abscondment: The H-2B worker  leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
  • Termination: The H-2B worker is terminated before completting the H-2B labor or services for which he or she was hired; or
  • Early Completion: The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.

Petitioners must include the following information in the employment-related notification:

  1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
  2. The reason for untimely notification and evidence for good cause, if applicable;
  3. The USCIS receipt number of the approved H-2B petition;
  4. The petitioner’s information, including:
    • Name
    • Address
    • Phone number
    • Employer identification number (EIN)
  5. The employer’s information (if different from that of the petitioner):
    • Name
    • Address
    • Phone number
  6. The H-2B worker’s information:
    • Full Name
    • Date of birth
    • Place of birth
    • Last known physical address and phone number

Additionally, to help USCIS identifythe H-2B worker, submit the following for each H-2B worker, if available:

  • Social Security number, and
  • Visa number

Note: USCIS defers to DOL’s definition of “workday.”  According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her “principal activities.”

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How do I notify USCIS? 

Email or mail your notification to the USCIS Service Center that approved the I-129 petition. Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center 

By email: CSC-X.H-2BAbs@dhs.gov

By mail:

California Service Center
Attn: Div X/BCU ACD
P.O. Box 30050
Laguna Niguel, CA 92607–3004

Vermont Service Center

By email: VSC.H2BABS@dhs.gov

By mail:

Vermont Service Center
Attn: BCU ACD
63 Lower Welden St.
St. Albans, VT 05479

Fee-Related Notifications to USCIS

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from an alien H-2B worker as a condition of employment.

Petitioners may avoid denial or revocation of their H-2B petitions if they notify USCIS that they obtained information concerning the beneficiary’s payment of (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2B petition. This narrow exception does not apply, however, where a petitioner knew or  should have known at the time of the filing of its H-2B petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.

Petitioners must notify USCIS of an H-2A worker’s payment or agreement to pay prohibited fees to a recruiter, facilitator, or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.

Petitioners must include the following information in the fee-related notification:

  1. The reason for the notification;
  2. The USCIS receipt number of the approved H-2B petition;
  3. The petitioner’s information
    • Name:
    • Address
    • Phone number
  4. The employer’s information (if different from that of the petitioner):
    • Name
    • Address
    • Phone number
  5. Information about the recruiter, facilitator, or placement service to which the beneficiaries paid or agreed to pay the prohibited fees:
    • Name
    • Address

How do I notify USCIS? 

Email or mail your notification to the USCIS Service Center that approved the I-129 petition.  Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center 

By email:CSC.H2BFee@dhs.gov

By mail:

California Service Center
Attn: H-2B Fee
P.O. Box 10695
Laguna Niguel, CA 92607–1095

Vermont Service Center

By email: VSC.H2BPROPLACEMENT@dhs.gov

By mail:

Vermont Service Center
Attn: BCU ACD
75 Lower Welden St.
St. Albans, VT 05479

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Find this page at: http://www.uscis.gov/h-2b.

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