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H-2B Visas for Temporary Non-Agricultural Workers

The H-2 B classification is a non-immigrant classification available to US employers for hiring foreign laborer ( or a group of laborers) coming temporarily to the US. H-2 B Visa holders are allowed to perform non-agricultural temporary service or labor, in the event capable US workers cannot be found.

There are 66,000 visa available in the fiscal year. In 2005, Congress passed the Save the Small and Seasonal Business Act (SOSSBA). The Act split the fiscal year into two halves with 33,000 visas for each half.

Proof of Temporary Need:

The employer must first undergo a DOL process – Temporary Labor Certification - to establish that no qualified US workers are available.

The employer must demonstrate:

  1. the position is temporary in nature
  2. he need for the duties performed by the foreign worker is temporary
According to the USCIS and DOL regulations, it is the nature of the employer’s need, and not the nature of the duties, which controls the temporary need factor.

To establish the temporary nature of the job the employer must show that:

  • the job does not exceed one year, and
  • the need fits into:
    • one time occurrence
    • seasonal need
    • peak load need; or
    • intermittent need
The employer must also establish that the employment of the foreign workers will not adversely affect the wages and working conditions of similarly situated US workers.

Duration of H-2B status

The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years The maximum H-2B stay is allowed is three years.

Procedure for filing the petition

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