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H-2B Non-Agricultural Workers

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H-2B Non-Agricultural Workers
H-2B Temporary Non-Agricultural Workers


Who May Qualify for H-2B Classification?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
  • Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.  The employer’s need is considered temporary if it is a(n):
    • one-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
      • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future; or
      • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker. 
          
                or
    • seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
      • Traditionally tied to a season of the year by an event or pattern; and
      • Of a recurring nature.

  Note: Employment is not seasonal if the period during which the service or labor is needed is:

      • Unpredictable;
      • Subject to change; or
      • Considered a vacation period for the employer's permanent employees.
          
              or
  • peakload need – A petitioner claiming a peakload need must show that it:
    • Regularly employs permanent workers to perform the services or labor at the place of employment;
    • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
    • The temporary additions to staff will not become part of the employer's regular operation.
        
            or
  • intermittent need – A petitioner claiming an intermittent need must show that it:
    • Has not employed permanent or full-time workers to perform the services or labor; and
    • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number of individuals who may receive H-2B nonimmigrant classification during a fiscal year. 

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, and on workers who are exempt from it, see the “Cap Count for H-2B Nonimmigrants” page.

H-2B Eligible Countries List

Except as noted below, H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries annually in a Federal Register notice.  Designation of eligible countries is valid for one year from publication.

Effective Jan. 18, 2013, nationals from the following countries are eligible to participate in the H-2B program: 

Argentina

Estonia

Kiribati

Peru

Tonga

Australia

 Ethiopia

Latvia

Philippines

Turkey

Barbados

Fiji

Lithuania

Poland

Tuvalu

Belize

Grenada

Macedonia

Romania

 Ukraine

Brazil

Guatemala

Mexico

Samoa

United Kingdom

Bulgaria

Haiti

Moldova

 Serbia

Uruguay

Canada

Honduras

Montenegro

 Slovakia

Vanuatu

Chile

Hungary

Nauru

 Slovenia

 

Costa Rica

Iceland

 The Netherlands

Solomon Islands

 

Croatia

Ireland

Nicaragua

South Africa

 

 Dominican Republic

Israel

New Zealand

South Korea

 

Ecuador

Jamaica

Norway

Spain

 

El Salvador

Japan

Papua New Guinea

Switzerland

 

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for him or her to be the beneficiary of such a petition.  (See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.)

Period of Stay

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification.   H-2B classification may be extended for qualifying employment in increments of up to 1 year each.   A new, valid temporary labor certification covering the requested time must accompany each extension request.  The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant.  Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

Exception: Certain periods of time spent outside of the United States may "interrupt" an H-2B worker's authorized stay and not count toward the 3-year limit.  See "Calculating Interrupted Stay for H-2 Classifications" for additional information.

Family of H-2B Workers

Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification.  Family members are not eligible for employment in the United States while in H-4 status.

 

 

Process & Procedures

The H-2B  program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf with all other required and supporting forms and document.

 

 

 

 

 

 

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