H2Bs visas are for non-agricultural temporary or seasonal workers. The H-2B nonimmigrant program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. This visa category supplies supplementary labor for demanding jobs that U.S. workers are unwilling to take.
Far from reducing job availability for U.S. workers, the H-2B program is essential for smaller and seasonal businesses. The employment must be of a temporary nature for a limited period of time such as a one-time occurrence, seasonal need, peak-load need or intermittent need. H-2B workers provide a legal, stable, and motivated workforce, which allows businesses to grow and create more jobs for Americans as well. Without the program, many employers would go unstaffed or close their doors, which would cause lost income for American businesses and lost tax revenues.
The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage. The prevailing wage must be offered to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards to protect similarly employed U.S. workers.
Employers report gains in productivity that offset recruiting and hiring costs. H-2B employees are consistently reliable and hard-working. They cure the problem of not having available, interested, and dependable U.S. workers. H-2B employment also correlates with higher U.S. employment rates. Without the program, many employers would go unstaffed and close their doors causing lost income and tax revenues.
The 2015 rules include several provisions to expand recruitment of U.S. workers, including more real-time recruitment efforts, requiring employers to offer work to former U.S. employees first, and establishing a national electronic job registry. The revisions strengthen worker protections with respect to wages, working conditions, and benefits that must be offered to H-2B and U.S. workers covered by these regulations. They also establish the prevailing wage methodology for the H-2B program, reinstating the use of employer-provided surveys to set the prevailing wage in certain limited situations.
The Employer Must:
The Employer Must Not:
The Employer Must:
1. Will offer terms and working conditions normal to U.S. workers similarly employed in the area of intended employment, which are no less favorable than those offered to H-2B workers.
2. Will offer a job opportunity to H-2B workers that is a bona fide, full-time temporary position with qualifications that are consistent with the normal and accepted qualifications required by non-H-2B employers in the same or comparable occupations.
3. Will truly and accurately state the dates of temporary need, reason for temporary need, and number of positions being requested for labor certification.
Employees who want to change to a new employer benefit from having "portability" of their nonimmigrant visa status. Without portability, H-2B workers are required to leave the States at the end of their authorized period of stay, so if the secondary petition has not yet been granted, the worker must travel home before turning around and returning to the States for the second job. Portability alleviates this unnecessarily duplicative process.
Portability allows an H-2B worker to transfer his or her employment from one authorized employer to another without an intermediate petition process.
On May 25, the Department of Homeland Security and the Department of Labor published a joint temporary rule (86 FR 28198) to:
[Employers of H-2B workers continuing employment with the same employer should continue to follow current Form I-9 guidance provided in the Handbook for Employers - Section 6.7 ]
Under this temporary rule, the worker can begin after a proper filing by the new employer. The worker can begin after the H-2B petition along with a valid temporary labor certification is received, even though it has not yet been approved.
Portability applies if:
Portability allows cost-spreading with shared recruitment, visa, and transportation expenses for shared workforces. For example, a ski resort hires H-2B employees as dishwashers for its winter season, from late November to April.
A crab processor hires H-2B crab pickers from April through December. The ski resort can send its H-2B workers to the crab processor at the end of the ski season for the start of crab-processing season, as long as both companies proved a seasonal need for temporary workers and were approved by USCIS. Both share the costs of the visa petition and travel expenses and provide workers with a longer term of employment.
The H-2B employee’s unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee’s foreign passport, qualify as a Form I-9 List A document.
To complete Section 2, the new employer should enter under List A: