On
March 10, 2004, USCIS announced that it had received enough H-2B
applications to meet the congressionally mandated cap of 66,000
workers for 2004. The new
allocation of visas will be available for work beginning on October 1,
2004.
We
advise people subject to the cap looking for alternative strategies to
consult early with their immigration lawyers. Also, we expect that
without Congressional action, the cap will be reached again next year,
possibly even earlier than March. So acting early to get a visa under
the allotment for 2004-2005 is very important.
What
is an H-2B Visa?
The
H-2B nonimmigrant work visa provides a method for US employers and
agents to obtain the services of foreign nationals to fill temporary
needs for additional workers.
How
long can a nonimmigrant remain in the US on an H-2B visa?
The
length of the stay on an H-2B visa is limited by the duration of the
employer’s temporary need for additional workers.
The maximum authorized period of stay is one year, and the visa
may be extended for a total of three years.
However, extension applications are closely scrutinized.
One
of the most significant restrictions on the H-2B category is the
requirement that the need for the foreign worker is temporary.
The Department of Labor recognizes four situations in which
there is a temporary need for workers:
recurring seasonal need, intermittent need, peak-load need, and
need based on a one-time occurrence.
Not only must the employer promise to employ the worker for a
limited period of time, but the employer must verify that its need for
the worker is temporary. There is no set rule for how long a season
can be, but most Labor Department offices will consider seasons of
more than nine or ten months a year to actually be continuous
employment and not seasonal employment.
Who
is eligible to apply for an H-2B visa?
Either
skilled or unskilled workers may be employed on an H-2B visa.
The only workers who are specifically excluded are 1) foreign
medical graduates seeking to perform work in medical fields and 2)
agricultural workers. The
visa is also often used for entertainers and athletes who do not meet
the requirements of the O and P visa categories.
US employers and
agents are allowed to petition for temporary H-2B workers.
US agents are allowed to file petitions for self-employed
aliens, cases where there will be multiple employers, and cases
involving foreign employers. When
the H-2B worker is self-employed, there must be a contract between the
agent and the worker specifying the wages and terms of employment.
The agent must also provide a complete itinerary of the planned
employment. When numerous
employers are involved, the agent must provide the dates of the
proposed employment, the name and address of the employers, and the
locations where the work will be performed.
When a foreign employer is petitioning for the services of an
H-2B worker, the agent must submit the employment contract between the
worker and the employer, as well as evidence of the agent’s
authority to act on behalf of the employer.
In this situation the agent is the person who is authorized to
accept service of process should the foreign employer be subject to
sanctions under US immigration law.
How does an employer apply for H-2B workers?
The
employer must first obtain a labor certification by the Department of
Labor (DOL) in order for USCIS to issue an H-2B visa.
The DOL must determine that there are no unemployed, qualified
and immediately available US workers for the position in the
geographical location of the proposed employment, and that employment
of the foreign national will not adversely affect the wages or working
conditions of US workers. To
satisfy the DOL, the employer must conduct a recruitment campaign.
Before beginning this campaign, the employer should contact the
state employment office to discover what type of recruiting efforts
will be required in that area. It
is also important to note that a US worker who is otherwise employed,
but expresses willingness to take the position recruited for is not
considered unemployed.
Who
is actually subject to the cap?
Not
every H-2B applicant is subject to the cap. Visas will still be
available for applicants who want to extend their stay, change
the terms of their employment and to change or add employers.
Has
the H-2B cap ever been hit?
This
year is the first time the 66,000 cap has been reached.
Until
recently, the limits and requirements of the category caused usage of
the visa to be marginal. For
example, in 1995, only 2,398 H-2B visas were issued.
However, the visa has become very popular in recent years,
particularly in the hospitality industry.
What
will happen to petitions that were not filed in time?
USCIS
will return all petitions for first-time employment subject to the
annual cap received after the end of business on March 9, 2004.
Returned petitions will be accompanied by the filing fee and
premium processing fee, if applicable.
Those
cases that were filed before the announcement was issued by USCIS will
be processed.
Can
an applicant re-submit an H-2B application?
Petitioners
may re-submit their petitions or file new petitions when they have
received labor certification approval for work to start on or after
October 1, 2004.
What
will happen to the petitions that do not count against the cap?
Petitions
for current H-2B workers normally do not count towards the
congressionally mandated H-2B cap. USCIS will continue to process
petitions filed to:
