H-2B Visa for Seasonal Workers
The H-2 program attempts to provide employers in the U.S. with two categories of workers:
- Temporary workers to perform agricultural labor or services (H-2A)
- All other temporary nonagricultural workers (H-2B)
Family - Family members of H-2A and H-2B aliens are classified un the H-4 category. They cannot receive authorization to work unless they change to a nonimmigrant category for which employment is authorized.
Both the H-2A temporary agricultural worker program and the H-2B temporary nonagricultural worker program require a certification by the U.S. Department of Labor stating that there is no U.S. workers available for the positions sought to be filled and that the employment for aliens for these positions will not adversely affect U.S. wages and working conditions.
H-2A Temporary Agricultural Worker
1. Definition of H-2A Temporary Agricultural Worker Status
The Immigration and Nationality Act (INA) defines an H-2A worker as an alien "Having a residence in a foreign country which he has no intention of abandoning who is coming temporarily to the United States to perform agricultural labor or services...of a temporary or seasonal nature." INA §101(a)(15)(H)(ii)(a). A job is defined as temporary when the employer’s need to fill the job with a temporary worker will, except in extraordinary circumstances, last no longer than one year. A job is seasonal when it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle, or a specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations. 8 C.F.R. § 214.2 (h) (5) (iv).
2. Requirements for H-2A Temporary Agricultural Worker Status.
There are three steps for an employer to take in order to obtain H-2A temporary agricultural worker status for alien workers.
Step One : An employer must file a labor certification application with the Department of Labor (DOL) to determine the availability of U.S. workers, and to determine whether the employment of aliens will adversely affect the wages and working conditions of similarly employed workers in the U.S.
Step Two : Once the DOL has issued a labor certification, the employer must file with the U.S. Citizenship and Immigration Services (CIS) center that has jurisdiction over the location of intended employment a petition to classify the non-immigrant as a temporary worker.
Step Three : When the petition is approved, a copy of the approved petition is sent to the U.S. consulate designated on the petition and the alien(s) can then go to the consulate to make their non-immigrant visa applications.
Duration of H-2A Temporary Agricultural Status.
The employer's petition is generally valid for up to one year. An alien admissible as an H-2A nonimmigrant is admitted for the period of the approved petition. An alien may obtain an extension of stay to work in another temporary agricultural position. However, an alien may not remain in the U.S. longer than three years.
H-2B Visa for Seasonal Workers
The H-2B visa is designated for individuals who will be employed in nonagricultural (H-2B) positions which are seasonal, intermittent or a one time occurrence. From ski resort workers in Colorado to amusement park employees in Florida, many workers come to the US on H2B visas
Spouses and children of H2 visa holders may enter and remain in the US in H4 status. H4 visa holders may attend school in the US but cannot accept employment
Who is Eligible?
An international beneficiary who is offered a job by a U.S. employer may enter the U.S. for a temporary time of specified duration to fill the offered position. The employment must be a one-time need based upon low U.S. worker availability, seasonal, or cyclical needs.
Petitioner must prove to the satisfaction of the United States Consul official that:
1) U.S. COMPANY IS OFFERING EMPLOYMENT - The employer must be offering a position that is temporary and based on unusual need.
2) PERIOD OF EMPLOYMENT MUST HAVE SPECIFIC ENDING DATE - The offered position must be an isolated occurrence that has a specific foreseen ending date. The position may not be a consistently vacant position, but the need for the Beneficiary must arise due to seasonal, cyclical, or tight labor market circumstances.
3) TEMPORARY LABOR CERTIFICATION - The Petitioner must obtain a temporary labor certification certifying that no U.S workers will be adversely affected by the employment of