H2B labor visa is for applicants to fill temporary non-agricultural jobs for which US workers are not available. H2B labor visa applicants must meet the following requirements:
- Employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need;
- Employer must demonstrate that there are not sufficient US workers who are able, willing, qualified, and available to do the temporary work;
- Employer must show that the employment of H2B labor visa applicants will not adversely affect the wages and working conditions of similarly employed US workers; and
- Labor certification from the US Department of Labor except for employment in Guam.
There is a quota on the total number applicants who may be provided H2B labor visa during a fiscal year. Once the H2B cap is reached, USCIS may only accept petitions for H2B workers who are exempt from the H2B cap.
H2B labor visa applicants may only be nationals of countries that the Secretary of Homeland Security has designated as eligible to participate in the program. The list of H2A eligible countries can be found on the USCIS website. H2B labor visa applications from a country not on the list may still qualify if the Secretary of Homeland Security determines that it is in the US interest.
USCIS may grant H2B labor visas for the period of time authorized on the temporary labor certification which is usually authorized for no longer than one year. H2B labor visas may be extended for qualifying employment in increments of up to one year. The maximum period of stay in H2B classification is three years. H2B labor visa holders that held such status for a total of three years is required to depart and remain outside the US for an uninterrupted period of three months before seeking readmission. H2B labor visa applicants may be accompanied by their spouse and unmarried children under 21 years of age. Family members of H2B labor visa holders may not engage in employment in the US.
US sponsors of H2B labor visa applicants must notify USCIS within two workdays in the case of any of the following incidents:
- No show: Failure to report to work within 5 work days of the employment start date on the H2A petition or within 5 work days of the start date established by the petitioner, whichever is later;
- Absconder: Failure to report for work for a period of 5 consecutive workdays without the consent of the employer;
- Termination: Terminated prior to the completion of agricultural labor or services for which he/she was hired; or
- Early Completion: Completes the agricultural labor or services for which he/she was hired more than 30 days earlier than the date specified in the H2A petition.