The H-2B visa was created to allow people to come to the U.S. temporarily as nonagricultural workers, to fill positions for which U.S. workers are in short supply. While in past years, the total number of H‑2B visa petitions that could be approved during the U.S. government fiscal year (October 1 through September 30) was 66,000, this number was raised in 2021. The Department of Homeland Security (DHS) announced a supplemental increase of 22,000 H-2B visas, with 6,000 reserved for nationals of Honduras, El Salvador, and Guatemala.
However, in conjunction with the increase, DHS will require businesses to engage in additional recruitment efforts for U.S. workers before sponsoring someone for an H-2B.
(For more on the law regarding H-2B visas, see the Immigration and Nationality Act or I.N.A. § 101 (a)(15)(H), 8 U.S.C. § 1101(a)(15)(H).)
The law basically divides the fiscal year into two parts, so that half the visas can be passed out during the first six months and the remainder during the second six months of the fiscal year. In the past, the annual quota has not always been enough to meet the demand for visas in this category; but the 2021 addition of visas might help.
In this article, we will explain who is eligible for an H-2B visa and how to apply.
Let's review some of the pluses, minuses, and issues surrounding the H-2B visa:
H-2B visas are meant for both skilled and unskilled workers (unlike H-1B visas, which are solely meant for college-educated workers).
The applicant must meet a number of requirements to qualify for an H-2B visa:
The term "temporary" refers to the employer's need for the duties performed by the position. There must be a specific beginning and end to the employer's need for the worker's services. Seasonal laborers, workers on short-term business projects, and those who come to the U.S. as trainers of other workers commonly get H-2B visas. A job can be deemed temporary if it is a one-time occurrence, meets a seasonal or peak-load need, or fulfills an intermittent but not regular need of the employer.
H-2B visas are also frequently used for entertainers who cannot meet the criteria for O or P visas. H-2B visas enable such entertainers to come to the U.S. for specific bookings. These bookings are considered temporary positions.
The H-2B is most commonly used for landscapers and groundskeepers, forest and other conservation workers, maids and house cleaners, amusement and recreation attendants, meat, poultry, and fish cutters and trimmers, and waiters or waitresses. Other jobs that have met the criteria include athletes, camp counselors, craftpersons, horse trainers, and home attendants for terminally ill patients. Although we've just given several examples of jobs that meet the USCIS's definition of temporary, be aware that most jobs do not.
Also realize that the work itself needs to be legal, or you could become deportable or ineligible for future visas to the United States.
For instance, despite marijuana having gained various degrees of legality in states such as Washington, Colorado, and California, it remains on the list of controlled substances under the Controlled Substances Act (21 U.S.C. § 802). And U.S. Customs and Border Protection (CBP) officials, who meet people at borders, airports, and other entry points, have in past cases deemed labor in marijuana fields to be a form of “drug trafficking,” which is among the many activities that can lead a person to be found inadmissible to the U.S., under Section 212(a) of the Immigration and Nationality Act (I.N.A.).
For a person from a nonparticipating country to qualify for an exception, he or she must show evidence of being the beneficiary of an approved H-2B petition, as well as how approval would serve the U.S. interests, based on such factors as:
Unfortunately, the U.S. government's record of decisions on when to grant such exceptions is noted for its inconsistency.
As of 2021, the following countries are on the H-2B visa list:
If you think you might qualify for an H-2B visa, your most important task is to find a U.S. employer who wants to hire you and has the patience to wait until you've gotten through the visa process. That employer will most likely need to hire a lawyer to help. Larger employers often have their own lawyers on staff. Because in most years, there are more people trying to get an H-1B visa than there are visas available, a lawyer can help make sure that your application is done right the first time, and gets filed before the visas run out.
For details about what to expect and do during the application process, see U.S. Immigration Made Easy, by Ilona Bray (Nolo). Or, consult an immigration attorney for a full personal analysis.