The H-2B visa is used by US Employers to temporarily employ skilled or unskilled foreign nationals. The need must be temporary and the need is as a result of no qualified US Workers being available. Hence, the employer needs to seek a Labor Certification to show that qualified US workers are not being displaced, and hiring the foreign national will not adversely affect the working conditions of US workers.
Certain types of workers are not eligible for H-2B, including foreign medical school graduates. Agricultural workers are also excluded and must use a H-2A instead. Also, entertainers or athletes who do not qualify for the O Visa or P Visa, may be able to use the H-2B visa instead.
The usefulness of the H-2B visa is severely limited due to the strict constraints and requirements placed on it:
1. The alien’s intent must be temporary AND the employer’s need for the alien must be temporary (even if the position is a permanent one).
2. The employer must undergo a form of a labor certification
3. The H-2B has a low numerical limit or cap (66,000).
Regarding the temporary requirement (1) above, examples that qualify will be for either one time occurrence positions, a seasonal need, a peakload need or an intermittent need.
Filing of a H-2B includes the I-129 petition, an Employer’s letter (explaining the temporary need), supporting documentation that supports the temporary nature of the position, documentation of the Alien’s qualifications and the modified labor certification.