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H-2B Visa Requirements

The H-2B visa allows foreign nationals to enter the United States to perform or execute temporary non-agricultural jobs. This visa is employer sponsored and hence requires the U.S. employers or U.S. agents who meet specific regulatory requirements in order to have this visa granted. The major reasons for which H-2B visas are required for temporary workers are as follows:

  1. One-time occurrence
  2. Seasonal need
  3. Peak-load need
  4. Intermittent need

A U.S. employer would need to file Form I-129 - Petition for Nonimmigrant Worker, on behalf of the prospective employee. To get more insight about H-2B visas, below are common questions answered by Experts.

Can I obtain an H-2B visa for my 30-year-old nanny?

Case Details: Currently she is abroad and I would like to bring her to the U.S.

Since the nanny is over 26 years of age, the J-1 visa, which is the “au pair visa” and would be the most suitable, will not be applicable to her. She would need to come on an H-2B visa provided you are employing her for a job that does not require a bachelor or higher degree of qualification. Another requirement is a labor certification. This entails that you advertise the job vacancy in the local media such as newspapers, magazines, posters, and so on. Once you have received applicants you need to review their resumes, and eliminate unsuitable candidates for valid reasons. You cannot reject them simply in order to hire your nanny. The main reason for this is to prove there are no qualified U.S. workers who can do this job. The U.S. government prioritizes jobs being available to U.S. citizens first and not to foreigners. The job offered should only be for three years without renewal. This entire procedure will be expensive and time consuming. Once you have hired the nanny you would need to pay them the same or similar salary as any other nanny working in your locality.

Is it mandatory for a seasonal worker to stay in the U.S. for all three years? 

Also: How long should I remain in my home country once I complete three years and wish to return to the U.S.?

An H-2B visa allows you to remain in the U.S for a maximum of three years. During the period the visa is valid, you are allowed to travel freely in and out of the U.S. Once the three year time period is complete, you will need to leave the U.S. for at least three months until you obtain another H-2B visa. During this time you are free to apply for a different category of visa which has fewer restrictions or is more suitable for your purpose.

Can a person work for more than one sponsor on an H-2B visa?

Case Details: I have a person working for me on a part-time basis. He works in another company which has sponsored his H-2B visa on a full time basis. Is this illegal? 

While on an H-2B visa, working for two companies or another company which is not the sponsor company is considered unauthorized employment. This employee is limited to working with only the companies that have sponsored him. The possibility of two sponsors is allowed if the petition for him to do so has been approved. However, unless you sponsor this person or if he transfers to your company, the work he is doing for you whether part- or full-time is deemed unlawful and the current sponsor company has the right to report this or have job visa revoked.

Can I transfer from an H-2B visa to an H-1B visa?

Usually an H-1B visa requires a professional degree and if you meet the criteria, you could convert your status from H-2B to H-1B. A fixed number of visas are available each fiscal year for H-1B visas. If your petition is approved, the visa would be granted if the numbers are available, or your work start date would be deferred till the next year. The exception to this is if you are applying to a non-profit organization or an educational institution. The USCIS could take up to six weeks to review the petition. It is the employer’s responsibility to submit the required degree certificates, documents and supporting proof to the USCIS. There is an option for premium processing which costs $1000 and provides a decision within fifteen days.

If I terminate my employment with my sponsor or they cease to continue business in the U.S. what is the status of my H-2B visa?

Once you are off the payroll of the sponsor company you are no longer in status and are required to leave the U.S. immediately. There is no grace period applicable for this. You are not required to notify anyone regarding leaving but it would be wise to retain your boarding pass as proof of your departure which would be helpful if you are applying for a visa in the future.

H-2B visas provide a good opportunity to work in the U.S. and gain insight on the work culture and standard of living in the U.S. You are also allowed to change your status or renew after you complete the time period. Seeking the insights of a lawyer with regard to your visa queries and doubts may be useful and worthwhile.

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