The H-2B visa category permits US employers to hire foreign nationals to work on a temporary basis in the United States without the necessity of proving that the position is a "specialty occupation" as is normally required for an H-1B visa. Legal expert David B. Raft explains.

Pursuant to the Immigration and Nationality Act, the law provides for H-2A and H-2B visas. H-2A visas are for agricultural workers whereas the H-2B visa category may be utilized by employers for any other non-agricultural employment positions.

The visa category is available to an alien who is coming temporarily to the US to perform temporary services or labour, is not displacing US workers capable of performing such services or labour, and whose employment is not adversely affecting the wages and working conditions of US workers.

The law defines temporary services or labour as when the employer’s need for the duties to be performed by the employee is temporary, whether or not the underlying job can be described as permanent or temporary. In general, this need must be for a year or less, unless extraordinary circumstances may dictate that the temporary services or labour may extend beyond one year.

The law requires that the employer’s need for the services or labour shall either be considered as a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.

In terms of what the law sets forth, it is important to understand the distinction between each of the considerations set forth above:

A one-time occurrence is determined by the employer being able to establish that it has not employed workers to perform the services or labour in the past and that it will not need workers to perform the services or labour in the future, or that it has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.

On the other hand, an employer can establish that there is a seasonal need based on the services or labour being traditionally tied to a season of the year by an event or pattern and is of a recurring nature. In determining this factually, the employer must identify the period(s) of time during each year in which it does not need the services or labour.

The employment is not seasonal if the period during which the services or labour is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner's permanent employees.

The determination as to whether or not the process is based on a peak-load need is determined by the employer establishing that it regularly employs permanent workers to perform the services or labour at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner's regular operation.

The determination is if the position being filled on an intermittent need is based on an employer proving that it has not employed permanent or full-time workers to perform the services or labour, but occasionally or intermittently needs temporary workers to perform services or labour for short periods.

The initial requirement for the filing of such a case is that the employer must apply to the US 'Department of Labor' (DOL) for certification that the employment position has been posted for the purpose of recruiting any available US workers and that none are available. In such cases, the employer may request certification for multiple beneficiaries of the same application.

If approved, multiple qualified foreign nationals could seek employment for the employer on the basis of the DOL approval. Upon approval by the DOL, the employer would file a petition to the US Citizenship and Immigration Services for adjudication and approval.

The individuals being sponsored for the visa must establish that they meet the minimum requirements for employment in the position at issue (education and/or employment experience). This may be determined by the individual providing verifiable evidence of their possessing at least the minimum education and/or experience necessary to perform the job duties of the position as stated by the employer.

The benefits of the visa category are that, by naming multiple beneficiaries, an employer could potentially qualify unnamed prospective employees for admission to the US pursuant to the H-2B visa category. This is of tremendous benefit because not all of the potentially named beneficiaries may be issued H-2B visas. In comparison, if an employer is sponsoring individuals who are physically present in the US, the petition must identify each prospective employee by name.

The requirements of an employer first documenting the application to the US DOL and thereafter seeking petition approval from the US Citizenship and Immigration Services does create certain timing issues with respect to the processing of such cases that must be planned in advance.

Proper strategizing of these needs, with careful consideration towards the government processing times involved will lead to the successful implementation of either programme by an employer.

It is critical to understand is that although this process can be of benefit to employers, the individual foreign nationals that may seek visas based on Immigration approval of an employer’s petition must still be able to satisfy a US consular officer of their intent to return to their home country upon completion of the temporary service or labour. Individuals who are not able to satisfy the consular officer’s concerns that they may overstay such visa status will be refused the visa, potentially disrupting critical services or labour that an employer may have relied on to further business development.

It is thus beneficial that other identified prospective employees be added to the application in case of such an occurrence.

A foreign national may be permitted to remain in the US pursuant to the validity of the underlying case filed to the US Citizenship and Immigration Services, but which cannot exceed a total of three years.

In general, an individual cannot again be granted H-2B status until such time as he or she remains outside the US for an uninterrupted period of six months. In certain circumstances, persons may be eligible for further H-2B status if their presence in the US was for less than the cumulative three-year total.

David B. Raft is a partner at the law offices of HirsonWexlerPerl, concentrating his practice on employment and family based immigration matters. He manages the Phoenix and Las Vegas offices of HirsonWexlerPerl and is a certified specialist in Immigration and Nationality Law. You can reach him at (949) 251-8844 or by email at dbraft@hirson.com