The H-2B program allows U.S. employers or U.S. agents who meet certain requirements to bring foreign nationals of certain countries ("H-2B eligible countries") to the U.S. to fill temporary/seasonal non-agricultural jobs. The U.S. employers or U.S. agents have to first file an I-129 petition on behalf of the prospective temporary workers.
H-2B eligible countries
The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice. Such designation of eligible countries is valid for one year from publication. For the most updated list, please visit: http://www.uscis.gov/news/alerts/uscis-announces-63-countries-eligible-participate-h-2a-and-h-2b-visa-programs.
An I-129 petition may be filed on behalf of a national from a country not on the list, only if the Secretary of Homeland Security determines that it is in the U.S. interest.
Requirements for H-2B
The U.S. employer must establish that:
1. There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
3. Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
How to apply
1. First, the U.S. employer has to apply for and receive a temporary labor certification for H-2B workers from the Department of Labor (DOL).
2. Next, the U.S. employer has to file a Form I-129, Petition for Non-immigrant Worker, along with proper Supplements, temporary labor certification, and supporting documents, with USCIS.
3. Once the I-129 petition is approved, you can apply for an H-2B visa at a U.S. Embassy/Consulate.
There is annual limit (“cap”) on the total number of individuals who may receive H-2B during a fiscal year. Once the cap is reached, USCIS only accepts I-129 petitions for H-2B workers who are exempt from the cap. You can check the current cap count at: http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants
Dependents (spouses and unmarried children under 21 years of age) of H-2B workers are entitled to H-4 visas/status. H-4 dependents may study, but cannot engage in employment in the U.S.
Period of stay
Generally, USCIS may approve the I-129 petition and grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended in increments of up to 1 year each. For each extension request, a new temporary labor certification covering the requested time is needed. The maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B status for a total of 3 years must leave the U.S. and remain outside the U.S. for an uninterrupted period of 3 months before seeking readmission as an H-2B worker. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.