3 Steps to Obtaining an H-2B Temporary Non-Agricultural Worker Permit

9:59 AM, Jul 19, 2018

Most people associate temporary work permits with agriculture, but short-term work visas are available to foreign nationals in other industries, as well.

While the U.S. Citizen and Immigration Services’ H-2A program is intended to fill temporary agricultural jobs, the H-2B program is designed to assist employers of non-skilled laborers in other fields, such as construction or landscaping, says Joanna Pezet, an attorney for Izaguirre Law Firm, a Colorado Springs-based immigration law firm serving businesses and families.

“These are for temporary positions, and job candidates can be outside the United States or already here,” Pezet says. “The workers are allowed to bring their families to the country with them during the period of their employment, but the family members can’t work.”

Employers petitioning for the H-2B visas must demonstrate that their temporary need is based on a one-time occurrence, a seasonal need, a peak-load need or an intermittent need.

A one-time occurrence would be an isolated project, such as construction of a building. Seasonal need is common in hospitality industries that exclusively serve customers during a particular time of year, for instance, a ski resort that shuts down over the summer. A landscaping firm that operates year-round but is busier at some times of the year than others has peak-load need. The government defines intermittent need as periodical and not continuous, such as a company that produces limited edition products to commemorate special events, but “only from time to time and not on a fixed schedule.”

There are three phases to applying for a temporary non-agricultural worker permit, and at this time the process could take about five months from start to finish, Pezet says.

1. Employer submits temporary labor certification application to the U.S. Department of Labor (DOL). 
“In order to obtain this certification, the employer must demonstrate through recruitment that there are no Americans willing, able, or qualified to do the work,” Pezet says.

At this stage, employers must conduct a good faith recruitment search to demonstrate that there are no Americans who are able, willing, qualified and available for the work to be undertaken. Employers must document what they did to advertise the position, as well as results of the recruitment, and make that documentation available to the government, if requested. They must also provide information on prevailing wages in the area for the type of work to be done. That’s to prove immigrants will not be undercutting domestic workers by accepting extremely low pay.

2. Petitioner submits Form I-129 to USCIS.

The applicant also must file a Form I-129 with the Department of Homeland Security’s United States Citizenship and Immigration Services (USCIS). Employers may use the form for a new job candidate outside the country, as well as to continue previously approved employment or for new concurrent employment.

The form contains questions about the job candidate, employer, job title and compensation, among other things. It also calls on beneficiaries to attest that they were not charged any fees in connection with their quest for employment. Costs are to be paid by the employer.

H-2B workers are authorized to work only for one employer for a specific period of time. If they quit or are fired, their visas are invalidated.

3. Prospective workers outside the United States apply for visa and/or admission.

Foreign nationals who are outside the country must next be interviewed by consular staff at a United States Embassy in the nation they are attempting to leave. They will be asked questions about their background, work experience and qualifications to do the job.

If you need an H-2B Temporary Non-Agricultural Worker Permit, Izaguirre Law Firm will be happy to evaluate your case and assist you. Call (719) 445-0292 to schedule a consultation or visit IzaguirreLawFirm.com.

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