Non-Permanent Business Visas: Seasonal Workers
H-2A Category
H-2B Category
H-2A Category
The H-2A category is available solely for individuals coming to the United States to work in temporary or seasonal agricultural positions.
Requirements
A U.S. employer must demonstrate that there are insufficient U.S. workers available to fill the position at the time and place needed. Further, the U.S. employer must demonstrate that the hiring of foreign workers will not adversely affect the wages or working conditions of similarly employed U.S. workers.
Further, the U.S. employer must offer the same wage to foreign workers as U.S. workers. This generally means the wage offered must be the higher of the prevailing wage for the area of intended employment, the state or federal minimum wage.
In addition, a U.S. employer must provide the following benefits to H-2A workers:
- Transportation to and from the worker’s temporary home to the workplace
- Reasonable costs for transportation home after the contract period
- Housing when the H-2A worker does not commute
- Three meals a day
- Any tools and supplies necessary to perform the work
- Workers’ compensation insurance
Procedures
First, the U.S. employer files an Application for Alien Employment Certification with both the U.S. Department of Labor (DOL) and the state workforce agency for the state where the employment is contemplated. The application must be submitted at least forty five days before the temporary workers are needed.
Second, the DOL then directs the U.S. employer to conduct recruitment for U.S. workers. If the DOL is satisfied with the recruitment, the DOL will certify the labor certification.
Third, after issuance of a certified temporary labor certification, the U.S. employer or agent must file an H-2A petition with the U.S. Citizenship and Immigration Services (USCIS) service center having jurisdiction over the place of intended employment.
Fourth, after USCIS approval of the H-2B petition, the foreign national may apply for an H-2B visa at an overseas U.S. Embassy or Consulate.
Time Limits
The H-2A visa is valid for a period not greater than one year. The H-2B visa may be extended in one year increments for no longer than 3 years. Once the H-2A worker has spent three years in the U.S. in H-2A status, the H-2A worker must depart the U.S. for six months before being able to resume H-2A employment.
Dependents
The spouse and all unmarried children under age of 21 years old may receive H-4 visas. These family members may attend school in the United States. However, an H-4 visa holder may not work.
Special Rules
Under certain circumstances where all of the needed foreign national are not known at the time of filing the H-2B petition, it is possible to utilize the certified labor certification for multiple subsequent foreign workers. This is very uncommon.
The H-2B Category
The H-2B category is available for individuals seeking to work in the United States to fill both skilled and unskilled non-agricultural positions on a temporary basis. The H-2B category is not available for foreign physicians.
Procedures
First, the U.S. employer or agent must file and obtain a temporary PERM Labor Certification from the U.S. Department of Labor (DOL). The U.S. employer or agent must conduct a labor market test to determine if there are any U.S. workers ready, willing and able to fill the temporary position and whether any U.S. worker applicants for the position possess the minimum requirements for the job.
In addition, the U.S. employer or agent must document that the employment will only be temporary in nature. The DOL looks at the nature of the employer’s need to determine temporariness. The DOL considers such factors as: recurring seasonal need, intermittent need, peak-load need, and need based on a one-time occurrence.
Second, after issuance of a certified temporary labor certification, the U.S. employer or agent must file an H-2B petition with the U.S. Citizenship and Immigration Services (USCIS) service center having jurisdiction over the place of intended employment.
Third, after USCIS approval of the H-2B petition, the foreign national may apply for an H-2B visa at an overseas U.S. Embassy or Consulate.
Time Limits
The H-2B visa is valid for a period not greater than one year. The H-2B visa may be extended in one-year increments for no longer than three years. Each extension requires a new certified labor certification. Once the H-2B worker has spent three years in the United States in H-2B status, the H-2B worker must depart the United States for six months before being able to resume H-2B employment.
Dependents
The spouse and all unmarried children under age of 21-years old may receive H-4 visas. These family members may attend school in the United States. However, an H-4 visa holder may not work.
Special Rules
The U.S. employer may also be an agent for H-2B petitions. Agent petitioners are common in situations where there will be multiple employers or where the employer is a foreign entity. In these circumstances, the U.S. agent must provide a complete itinerary of the planned employment including the names and addresses of each employer, the dates of the proposed employment, and the locations where the work will be performed. Further, the agent must provide a copy of an employment contract between the worker and the foreign employer.
If the H-2B employer dismisses an H-2B employee for any reason, including for cause, before the expiration date of the H-2B petition, the H-2B employer is obligated by regulation to provide the H-2B employee with funds for the reasonable costs for the H-2B employee to return to his/her last place of foreign residence. This obligation does not include H-4 family members. If the H-2B employee voluntarily leaves the H-2B employment or if the H-2B employee does not wish to return home, the employer does not have to provide and funds.
FAQs for Seasonal Workers (Coming soon)
