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H-2B visas for guest workers

by Cedric M. Shen

April 6, 2011 | 7:05 pm

I’ve had several inquires from employers who want to employ a foreign worker who does not qualify under the more common work visas, such as an H-1B, TN, L or J visa.  Several of these employers are families wanting to know how they can sponsor their nannies or au pairs – most of whom are citizens of Mexico.  The two most common options are the H-2B visa and the J-1 visa.  I’ve already discussed the J visa in a previous blog, so this post will discuss the H-2B visa.

H-2B
The H-2B is a non-immigrant visa that applies to foreign workers who are not working in the agricultural field. The visa is for employer who have a temporary need for the foreign employee that is intermittent, recurring, peak-load or a one-time occurrence.

To qualify for an H-2B an H-2B visa:

The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application) ***Source USCIS website
The H-2B visa is valid for one year or less, though it can be renewed for up to three years.  There are many benefits to the H-2B visa.  First, the visa covers a broad spectrum of jobs, such as seasonal ski instructors, au pairs, etc.  These are jobs that may not normally qualify or other work visas.  This visa is also a good option because the educational requirements and work experience requirements are generally less stringent and more flexible than that of other work visas.  For example, an H-1B visa generally requires a specialty occupation and a minimum bachelor’s degree.  These requirements alone usually preclude a nanny from qualifying for an H-1B.  Other work visas, such as a TN visa, do not include nanny or au pairs on the occupation list.  Finally, the visa is ideal for employers who need employees, and can only pay wages lower than that which may be required for jobs under a TN or an H-1B visa.  However, the downside is that the H-2B visa requires considerable recruiting efforts by the petitioner – something that many employers may not be able, or willing, to do for an employee who will only be in the United States for a relatively short period of time.  On balance, however, the H-2B is a great option for employers who have a short-time need for foreign workers.

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ABOUT THE AUTHOR

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Cedric M. Shen is a Los Angeles-based immigration attorney experienced in helping foreign nationals enter the United States. His law practice focuses on employment-based green...

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