Job Employment In Canada

H2b Visa Key Things Seasonal Workers Must Know

If you wish to travel to America and work over the summer in a hotel, theme park or on a cruise ship, or if you want to work in a restaurant or as a ski instructor over the winter then the H-2B visa category is for you. The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the US temporarily to engage in nonagricultural employment which is seasonal, intermittent, peak load need, or a one-time occurrence. There is an annual limit of 66,000 on the number of foreign workers who may receive H-2B status during each USCIS fiscal year (which runs from October 1 through September 30). Workers already in H-2B status and returning H-2B workers do not count towards the cap.

Qualifications for an H2B visa:

* The nature of job must be temporary.
* You must have a valid job offer in the US.
* The assignment time frame should not be more than a year.
* Intent to return to the foreign country of your residence should be established.

In the language of the regulation, an "H-2B nonagricultural temporary worker is an alien who is coming temporarily to the United States to perform temporary services or labor, is not displacing U.S. workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of U.S. workers." Temporary services or labor under the H-2B regulations refer to any job in which the petitioners need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary. The petitioners need, which must generally be one year or less, can be a one-time occurrence, a seasonal need, a peak load need, or an intermittent need. These terms are explained in more detail below.

Let us now discuss the four temporary concepts in detail.

Recurring seasonal need: The petitioner must establish that the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. The petitioner must specify the period(s) of time during each year it does not need the services or labor. The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.

Intermittent need: The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Peak-load need: The petitioner must establish that it regularly employs permanent workers to perform services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

One time occurrence: The petitioner must establish that the petitioner has not employed workers to perform the services or labor in the past and the petitioner will not need workers to perform the services in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary occurrence.

H-2B Visa duration: The duration of the H-2B is limited to the employer's need for the temporary workers. The maximum authorized period is one year.

Numerical Limit: There is a statutory limit of 66,000 on the number of H-2B nonimmigrants during each fiscal year. This cap is split between the first and second half of the year, with 33,000 visas allocated to each half.

Visa Validity: The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year.

Extension of Stay: The H-2B visas are granted for 1 year. A foreign national may apply for extensions in one year increments to a maximum of 3 years. Each extension requires submitting a new Labor Certification.

Obtaining a Labor Certification: An employer who seeks to use foreign labor for a short-term under the H-2B visa program, must first obtain a Labor Certificate for a specified number of workers from the US Department of Labor (DOL). The employer does this by presenting evidence to the DOL that its need for labor is temporary and that there are no workers available in the local labor market. Once the employer has obtained the Labor Certificate, he files this with USCIS, which will then adjudicate the petition. The USCIS will deny any petition that does not include a Labor Certificate.

Unavailability of Qualified Workers: The US employer has to prove that there are no qualified workers that are ready, willing, and available to fill the offered job. Proving that there are no available workers in the local labor pool involves advertising the position in a local newspaper of general circulation for three consecutive days. The DOL also opens a job order on the internet (through the local state employment office) for a period of ten days. Interested applicants are instructed to send their resumes and references directly to the DOL, which then forwards these to the employer.

Given the current labor shortage, our experience has been that few, if any, qualified workers send their resumes to the DOL. Those that do rarely show up for work if offered a job. This may all change given the current economic climate in the US. In any event, the employer must contact any applicant that appears to meet the minimum qualifications. Once the recruitment period comes to an end (usually 14 days), the employer sends a statement of recruitment results to the DOL and waits for approval of the Labor Certificate, usually two to three weeks.

Entry into the US: Applicants should be aware that approval of an H-2B petition does not guarantee that they will be issued a visa, nor does a visa guarantee entry into the United States. The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines how long a person with a temporary work visa is authorized to remain in the United States. At the port of entry, an immigration official will issue a Form I-94, Record of Arrival-Departure, which notes the classification admitted in, and length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file: Petitions can be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment will start, otherwise the petition processing and visa issuance may not be completed before work is to begin.

Bringing family members: Spouses of H-2B visa holders, and unmarried children under 21 years of age of H-2B visa holders, are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2B visa holder. H-4 visa holders are not permitted to work in the US.

H-2B - Employer Specific: An H-2B visa holder can only work for the employer listed on their H-2B Visa Petition.

Dual Intent: The H-2B is a nonimmigrant visa category which does not support the doctrine of dual intent, i.e., the holder must demonstrate the intent to depart from the US at the end of their authorized stay.

H-2B Visa Holders Whether Qualified to Apply for other Visas & Citizenship: An foreign national in the US on an H-2B work visa is able to file for a Change of Status. Where the change of status pertains to a new job offer the new employer must file a petition on your behalf. Because the H-2B visa is by definition for temporary work you cannot use that work as a basis for a green card application (employment for green card purposes must be full-time). While in H-2B status you can only file a Green Card application that is based on a Family Based Immigration petition. These must be filed by a spouse, parent, son or daughter over the age of 21, or brother or sister who are either US citizens or permanent residents.

Before we end our article, let us have a quick look at some of the positive and negative aspects of the H-2B work visa.

Benefits of H-2B Work Visa:

* You are permitted to work legally in the United States for your sponsor;
* You are allowed to travel in and out of the United States until the visa expires;
* You may change jobs if you can show a new job offer;
* You may study on an H-2B visa;
* Dependants (spouse and unmarried children) are permitted to accompany you on H-4 dependant visas. They are permitted to study, but not work, while on an H-4 visa; and
* You may apply for an extension of stay and/or change of status while on an H-2B visa.

Limitations of H2B Work Visa:

* H-2B dependents are not permitted to work in the U.S.
* Requirement of labor certification, a time consuming process
* The job must be temporary in nature

While only a few H-2B Visas are issued each year, the visa is nonetheless useful. The H-2B visa enables US businesses and agents to fill temporary needs with nonimmigrant workers. Many individuals unable to obtain an O or P Visa may apply for this visa. However, medical school graduates are not allowed to apply for an H-2B visa.

Conclusion: The H2B visa is a great way for people who want to live in the US temporarily, work in seasonal and fun jobs. However, while the visa allows employers to fill their temporary needs, it is a complicated and, sometimes, drawn out process.

About the author: Express H2B is an online service that helps companies identify and recruit foreign workers for seasonal labor needs. We utilize S.P.E.E.D, our proprietary system developed by ExpressH2B to centralize processes, reduce costs and maximize results for our clients.


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