H-2B Temporary Worker Visas
The H-2B Nonagricultural Temporary Worker visa allows foreign nationals to temporarily come to the U.S. to perform temporary services or labor. Temporary services or labor under the H-2B classification refers to any job in which the employer's need for the duties to be performed by the employee(s) is temporary, whether or not the underlying job is itself permanent or temporary. H-2B applicants must first obtain on their behalf an approved labor certification. Once the H-2B is approved, the H-2B employee is admitted for time on the labor certificate, but is not admitted to stay in the U.S. for longer than three (3) years.
Elements of H-2B Strategy
- Both the job and the petitioning employer's need for the specific alien must be temporary.
- The petitioner's need must generally be one year or less and can be either: (1) a one time occurrence, (2) a seasonal need, (3) a peak load need, or (4) an intermittent need:
- One Time Occurrence: The petitioner must ascertain that it has not employed workers to perform the services in the past and it will not need workers to perform the services or labor 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 worker.
- Seasonal Need: The petitioner must ascertain that the services or labor is traditionally tied to a season of the year by event or pattern and is of a recurring nature.
- 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 a basis owing to a seasonal or short-term demand. The temporary additions to staff will not become a part of the petitioner's regular operation.
- Intermittent Need: The petitioner must establish that it occasionally or intermittently requires temporary workers for services or labor for short periods of time.