The process of petitioning foreign workers to work in the U.S. is anything but simple, no matter the context or type of temporary business visa. In the arena of the H-2A and H-2B visas, this is particularly true, as the process is exceptionally complex and involves a long list of rules and regulations. With careful planning and the right circumstances though, a company in need of certain types of workers will find H-2A and H-2B visas will be of great use in helping to fill unmet organizational needs.
H-2A – Temporary Agricultural Workers
An intending U.S. employer is eligible to file a petition to facilitate entry of Temporary Agricultural Workers to enter the U.S. to work on their behalf and for up to three years, if the intending employer can demonstrate:
- That the position at issue to be filled is either temporary or seasonal,
- There is a lack of availability of labor in the U.S. ready, willing, and able to fill the position at issue,
- The worker being petitioned is a national of a country on the H-2A eligibility list SEE https://www.uscis.gov/news/alerts/uscis-announces-countries-eligible-h-2a-and-h-2b-visa-programs-0
- The employment of the petitioned worker will not negatively impact the working conditions or salaries of individuals in the current U.S. labor force employed in similar positions,
- In most cases, as a key element of the H-2A filing, that the intending employer must secure a certification from the U.S. Department of Labor, known as a Temporary Labor Certification (this requirement can be waived in when “emergent circumstances” are at play – see 8 CFR 214.2(h)(5) .
H-2B – Temporary Non-Agricultural Workers
A U.S. company seeking to facilitate entry of Temporary Non-Agricultural Workers into the U.S. and for up to three years, must document:
- that sufficient numbers of ready, willing and able U.S. workers are available to fill the position(s) at issue,
- that the workers being petitioned are nationals of a country on the H-2B eligibility list SEE https://www.uscis.gov/news/alerts/uscis-announces-countries-eligible-h-2a-and-h-2b-visa-programs-0
- that the employment of the prospective H-2B workers will not negatively impact the salaries or employment conditions of workers in the U.S. labor market who are employed in similar positions and
- that the need for the petitioned worker’s services or labor is actually temporary – with temporary defined as:
- one-time occurrence – A petitioning employer seeking to document a one-time occurrence must demonstrate that it has not previously employed workers to carry out the particular responsibilities or roles in question, and that in the future it will not require workers to carry out these roles or duties in question, or that an event of a temporary nature/duration prompted the opening for a worker to fill the role in question.
- seasonal need – A petitioning employer seeking to document a seasonal need must demonstrate that the roles or duties it seeks to have the foreign worker carry out is usually related to a season of the year by some sort of other event that is a recurring one. Notably, an employer will not be able to document a seasonal need if the period of admission for the providing of labor/services being sought is unpredictable, variable or considered a period of vacation for a company’s current, permanent employees,
- peakload need – An employer seeking to demonstrate a peakload need must document that it usually employs permanent staff to carry out the roles in question at the workplace in question, that there is a temporary need to fill labor gaps in its permanent staff at the workplace at issue because of a seasonal or short-term need, and that the nonpermanent workers being petitioned will not be permanently integrated into the petitioning employer’s regular operation OR
- intermittent need – An petitioning employer seeking to document an intermittent opening must demonstrate it has previously no employed permanent or full-time staff to carry out the roles and duties at issue and that it occasionally or intermittently requires temporary workers to fill such roles for periods of short duration.
The process of testing the U.S. labor market and documenting the unavailability of U.S. workers to fill a particular position, essential components of the above road maps to visa issuance, will come by way of a U.S. Department of Labor review and validation of all steps. If all steps are appropriately complied with, the U.S. Department of Labor will issue a temporary labor certification, and from there the petitioning employer can proceed with submitting their petition and supporting documents with the U.S. Department of Homeland Security/Citizenship and Immigration Services.