By Atty. Liliana C. Gallelli
THE H-2B visa program is a crucial part of temporary work visas available for non-agricultural workers to fill seasonal positions in the United States. Unlike the H-2A visa, which was created to address agricultural labor needs, the H-2B program applies to an array of industries such as hospitality, landscaping, construction, and more.
What is the H-2B visa?
The H-2B visa is designed for employers facing a temporary, seasonal, peak-load, or intermittent need for non-agricultural workers. These employers must prove that they cannot find U.S. workers to fill these positions and that hiring foreign workers won’t adversely affect the wages and working conditions of American workers.
Eligibility criteria
Employers must adhere to strict eligibility criteria to qualify for the H-2B program. These include demonstrating a temporary need for additional workers, engaging in a proper recruitment process within the U.S., and proving that the employment period is temporary, among other requirements.
The application process and limitations
The application process for H-2B visas involves multiple steps and requires coordination between employers, prospective employees, and the U.S. Citizenship and Immigration Services (USCIS). Employers must file Form I-129 (Petition for a Nonimmigrant Worker) on behalf of the intended employees. Successful petition approval is followed by a visa application at a U.S. embassy or consulate abroad. The visa is usually approved for not more than one year but the visa can be extended for up to three years.
An employee may:
- Enter the U.S. for a temporary work and enjoy all employee benefits
- Have dependents (immediately family) with the H2B worker in the U.S
- Travel freely in and out of the U.S.
Although dependents can join the H2B worker in the United States, they may not work in the U.S.
Annual cap and allocation
The H-2B visa program has a statutory numerical limit, commonly referred to as the “cap,” set at 66,000 visas per fiscal year. This cap is divided into two halves, covering employment start dates during the first half (October 1 – March 31) and the second half (April 1 – September 30) of the fiscal year. However, certain workers are exempt from this cap.
Conclusion
The H-2B visa program remains an essential avenue for U.S. businesses to address seasonal labor shortages. As discussions surrounding immigration reform persist, the future of the H-2B program may see revisions aimed at balancing the needs of employers, protecting workers, and addressing broader socio-economic concerns.
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Liliana Gallelli, has been practicing law since 2004 and is a partner at the law firm Kerosky & Gallelli and has successfully served thousands of clients. Her experience includes complex immigration law, estate planning, closely-held businesses and non-profit organizations. Mrs. Gallelli practiced transactional law at Toews Law in San Luis Obispo, CA and later joined Gallelli & Gallelli, Inc., law firm in Beverly Hills, CA. She interned at the City of Burbank City Attorney’s Office and with the Brazilian international law firm, Noronha-Advogados. Since 2007, Mrs. Gallelli has been focusing her practice on complex immigration matters and post-conviction relief. She writes immigration columns for several newspapers and is a frequent guest speaker on issues of immigration. She recently has been recognized as Elite Lawyer and received an award for her outstanding work in the legal field.
