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H-2B Skilled Worker visas are available to those persons who are coming to the United States to engage in temporary, nonagricultural employment.
There is a 66,000 per year limit on the number of persons who may receive H-2B status during each INS fiscal year.
The critical prerequisite to H-2B visa eligibility is the requirement that both the job itself and the U.S. employer's need for the specific foreign worker must be temporary in nature. The employer's need for the worker must generally be for a one year period or less and can be either a one-time occurrence, a seasonal need, a peak load, or an intermittent need.
The maximum period for which an alien can be admitted to stay in the United States in H-2B status is three (3) years. After this three (3) year period has expired, the foreign worker cannot seek to extend or change status, nor can he be readmitted to the U.S. under the H and L nonimmigrant classification unless such alien has resided and been physically present outside the United States for the immediate prior six months.
The H-2B visa is issued in one (1) year increments with discretionary one (1) year extensions of stay permissible until the total three (3) years of H-2B eligibility has been reached.
H-2B visa applicants must demonstrate that no qualified U.S. citizen or permanent resident alien workers are readily available in the area of intended employment to accept the temporary position offered to the foreign worker. Temporary Labor Certification of the offer of employment is therefore required which involves an application to the State Employment Security Agency (SESA), advertising for the position offered, and screening of any U.S. citizen or permanent resident aliens who respond to the SESA recruitment effort.
Once the SESA has completed the recruitment effort, the Department of Labor (DOL) Regional Certifying Officer will determine whether the position offered and the employer's underlying need for the position are truly temporary in nature. If the DOL agrees that the position is temporary, the DOL will "certify" the case.
If DOL certification is secured, the employer must then file form I-129 Petition for Non-immigrant Worker with the BCIS Service Center having jurisdiction over the place of intended employment. The BCIS will generally approve an H-2B case which was certified by the DOL. Even if the DOL does not certify the case, the BCIS retains the authority to approve the H-2B petition provided the U.S. employer can convince the BCIS that the position is truly temporary in nature.
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