Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 U.S.A.

Telephone:  (334) 832-9090

Copyright by Boyd F. Campbell, All Rights Reserved.

H-2B visas for temporary nonagricultural  workers

Attorney at Law and Civil Law Notary

    The process for receiving authorization to hire temporary nonagricultural workers is too complicated for the type of one-page article on immigration law topics that I like to write.  But this format does provide space to give you some basic information, which you should not use unless you are prepared to spend considerable time wandering through a bureaucratic maze.
    Basically and this is very basic the prospective employer obtains labor certification for the temporary nonagricultural worker positions, including tree-planters and domestic servants, from the local employment service.  The employment service will then issue recruiting instructions to the prospective employer, including how to advertise the availability of the positions, and the U.S. Department of Labor (DOL) may later issue a certification.  The application with Citizenship and Immigration Services (CIS) of the U.S. Department of Homeland Security follows.
    The H-2B visa is generally valid for one year or less, although the regulations recognize that there may exist extraordinary circumstances in which temporary services or labor might be required for longer than one year.  Generally, the prospective employer must  demonstrate the temporary, nonagricultural worker is coming to the United States to perform temporary services or labor, and "is not displacing United States workers capable of performing such services or labor, and whose employment is not adversely affecting the wages and working conditions of United States workers."
    Although the prospective employer uses the same application used for a permanent labor certification, H-2B labor certifications are on a fast track.  And although obtaining labor certification from the state employment service is important, it is deemed to be a recommendation only, and the H-2B labor certification can be denied by the DOL.
    The prospective employer must also establish to the satisfaction of DOL and CIS that the proposed employment is temporary, and is a "one-time occurrence," a "seasonal need," a "peakload need," or an "intermittent need."  There are many ways for prospective employers to show that their need is temporary and of a nature that will be approved for labor certification.  If labor certification is denied by the state employment service, its determination may be rebutted in a showing to the regional DOL.  DOL is charged with making these determinations, so its findings are generally accepted by CIS.
    The prospective employer must also establish that the prospective temporary worker meets the certification's minimum employment and job training requirements.  Evidence may be in the form of past employment documents, company payroll and tax records, or affidavits.  Certificates of education and training and other evidence may be used to support this.
    An approved labor certification does not mean that CIS will accept the visa application.  This means that the prospective employer must make the same case (slightly altered) to CIS that it makes to DOL and the state employment service.
    The maximum period for which a temporary worker may be admitted to the United States is three years.  After that, the worker may not receive an extension or a change in status to another nonimmigrant visa classification.
    A period of six months outside the United States allows the temporary worker to re-enter in H-2B status based upon a new labor certification and a new, approved H-2B visa.
    Prospective employers must agree to provide return transportation costs for any H-2B worker who is dismissed from employment, for any reason, prior to the end of the approved stay.
    The process is too complicated to interest most of my small-business clients.  It is complicated because of federal rules and regulations and the length of time it takes to get someone here for temporary work.  The U.S. employer would be wise to start this process at least six months before the need for the foreign workers.

    WARNING: A foreign national may not be employed in the United States unless he or she is authorized to be employed by CIS.  Foreign nationals who enter the United States on H-2B visas may work for the employer specified on their visa, but they may not leave their employment and go to work for another employer without first obtaining a new visa.  If you are a U.S. employer and would like to know more about this visa, you may call the Immigration Law Center, at (334) 832-9090.  If you would prefer to contact a U.S. immigration lawyer near you, please call the American Immigration Lawyers Association in Washington, D.C., at 1-800-954-0254.

    Boyd F. Campbell is a member of the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB).  He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998.  He is also a memer of the ABA's International Law Section.  Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002.  He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988.  In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.

Questions or comments about this article may be directed to:
Immigration Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032 USA

Telephone:  (334) 832-9090

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