H2-Visas

Hey everyone, so like I mentioned in my last post, this next post will finish up all the Nonimmigrant
Visas by detailing the much discussed (especially during President's Trump's presidential campaign) the H2-Visas. These are temporary work visas for those coming to work just a certain job for a shortened amount of time. These are sometimes known as seasonal work visas, but these are so much more. In addition, most people only know of the H-2B visas, but there are also H-2A visas as well. One thing that is important to understand though is that the only way to get these visas as well as any other Employment visa is for a US employer to file the petition for you as well as file a Labor Certification. With that said, the US employer is known as the Petitioner. I will go into more detail on this in a different post. So, I hope this information can help you. Let's get started.

H-2A VISAS

The H-2A is also known as the Temporary Agricultural Workers visa. In order for the Petitioner to qualify for H-2A classification, the petitioner must:

• Offer a job that is of a temporary or seasonal nature.
• Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
• Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
• Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. 

After the Petitioner is qualified, the process to get a H-2A visa goes something like this 

• Step 1: Petitioner submits temporary labor certification application to the U.S. Department of Labor (DOL).  Before requesting H-2A classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2A workers from DOL. For further information regarding the temporary labor certification requirements and process, see the Foreign Labor Certification, Department of Labor Web page.
• Step 2:  Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2A employment from DOL, the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification as initial evidence with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)
• Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approves Form I-129, prospective H-2A workers who are outside the United States must:
• Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
• Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

One thing that is important for both employers and foreign nationals to know is that there are only certain countries whose citizens are allowed to apply for the H-2A visa. For a complete list of those countries see here. In addition, the visa only lasts for as long as the Labor Certification is valid for, with the maximum stay is 3 years. However, after those 3 years if the foreign national returns to their country for an uninterrupted period of 3 months, the foreign national can once again apply for a H-2A visa. In addition, the foreign nationals family can come and stay in the US with the foreign national through a H-4 visa. However, they will not be eligible for employment.

Finally, there are requirements that the Petitioner has to follow while the foreign national is working or else they will be fined and it could affect the foreign national's visa. This requirement is reporting to USCIS within 2 workdays of any of the following occurring:

• No Show: The H-2A worker fails to report to work within 5 work days of the latter of:
• The employment start date on the H-2A petition, or
• The start date established by the employer;
• Abscondment: The H-2A worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer;
• Termination: The H-2A worker is terminated before completing of  the H-2A labor or services for which he or she was hired; or
• Early Completion: The H-2A worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2A petition.

Petitioners must include the following information on the employment-related notification:

• The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion”);
• The reason for untimely notification and evidence for good cause, if applicable;
• The USCIS receipt number of the approved H-2A petition;
• The petitioner’s information, including:
• Name
• Address
• Phone number
• Employer identification number (EIN)
• The employer’s information (if different from that of the petitioner):
• Name
• Address
• Phone number
• The H-2A worker’s information:
• Full Name
• Date of birth
• Place of birth
• Last known physical address and phone number

Additionally, to help USCIS identify the H-2A worker, submit the following for each H-2A worker, if available:

• Social Security number
• Visa number

H-2B VISAS

This visa is also known as the Temporary Non-Agricultural Workers visa. In order to become qualified as a H-2B 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.
• Employing 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:
• An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
• 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

• 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: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:
• Unpredictable;
• Subject to change; or
• Considered a vacation period for your 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, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

With that said, one thing that everyone must know is that H-2B visas are very hard to get because there is a numerical cap to these visas. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next. These visas go fast and usually run out the first day. So, if you are thinking about applying for this visa, please make sure you are apply first and ahead of the due date. In addition, if you do choose to apply for this visa, the process goes as follows:

• Step 1: Petitioner submits temporary labor certification application to DOL.  Before requesting H-2B classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).*  For further information regarding the temporary labor certification application requirements and process, see the Foreign Labor Certification, Department of Labor and Foreign Labor Certification, Guam Department of Labor  Web pages.
• Step 2: Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit original temporary labor certification with Form I-129.  (See the instructions to Form I-129 for additional filing requirements.)
• Step 3: Prospective workers outside the United States apply for visa and/or admission.  After USCIS approved  Form I-129, prospective H-2B workers who are outside the United States must:
• Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
• Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.

Also, just like the H-2A visas, there is a country list that shows which foreign nationals are eligible for this visa. That country list can be found here. As for the period of stay, the worker's family, and the Petitioner's responsibilities, the rules are the exact same as the H-2A visas. So, see above.

Well that is about it. There is a lot of important information here. I hope that this helps out. This concludes all of the Nonimmigrant visas. My next few posts will be going into the Immigrant visas such as family-based and employment based. If you have any questions or concerns please contact me. Also, if you have family members or friends that may need this information, please send this to them. Enjoy!!