A Massachusetts H-2B Immigration Attorney Outlines the H-2B Visa Application Process
As a Massachusetts H-2B immigration attorney, I assist U.S. employers and foreign nationals in obtaining visas for work in the U.S. The H2-B visa program allows U.S. employers to hire foreign workers for temporary non-agricultural positions, generally lasting less than a year, but not more than three years. Although these workers have to have appropriate education and skills for the job, they need not be professionals nor have attained any particular educational credentials like H1-B visa applicants.
The H2-B application process involves the following steps:
- The employer requests a prevailing wage determination (PWD) from the Department of Labor (DOL).
- The employer attempts to recruit U.S. workers for the job.
- The employer files an application for a temporary labor certification with the Department of Labor (DOL).
- After the labor certification is approved, the employer files a visa petition with the USCIS.
- If outside the U.S., the worker applies for an H2-B visa at a U.S. consulate, typically the consulate in his or her home country. (This step is not necessary if the employee is currently in the U.S. legally or from Canada.)
- The worker enters the country with the visa.
Prevailing Wage Determination
The employer must offer the foreign temporary employee at least the prevailing wage in the local job market for the position. To find out the prevailing wage, the employer files a request with the DOL through its web portal describing the job and the qualifications for doing it.
Recruiting U.S. Workers
Before H2-B visas will be approved, the employer must attempt to find U.S. workers to fill the temporary jobs. This requires the employer to file a job order with the State Workforce Agency (SWA) serving the area of intended employment. The job order must be filed no more than 120 calendar days before the employer’s date of need and must be open for a minimum of 10 days. In addition, the employer must publish two advertisements in print for the job, one of which must be on a Sunday. Only if the employer is unable to recruit suitable U.S. workers will it be able to employ a foreign worker.
Temporary Labor Certification
If the employer is unsuccessful in recruiting sufficient U.S. workers, the next step is filing for a Temporary Employment Certification with the DOL, ETA Form 9142. The form requires the following information:
- Temporary need information. The title of the job for which the workers are sought, the beginning and ending dates of employment, the number of positions for which foreign workers are sought, the nature of the temporary need and a statement of why they are temporarily needed.
- Employer/Agent information. The employer’s name and contact information; the name and contact information for the employee authorized to communicate with the DOL on the employer’s behalf; and the name and contact information for the employer’s attorney.
- Job offer information. The job title, hours, and job duties, which should be explained in great detail. The minimum education, training, and experience required for the job and any special skills and licenses or certifications needed.
- Rate of pay. The basic and overtime pay rates.
- Recruitment efforts. An explanation of the efforts undertaken by the employer to recruit U.S. workers for the job.
If the Temporary Labor Certification is correctly prepared and satisfactory, the DOL will notify the employer that it has been granted.
H-2B Visa Petition
After the DOL grants the Temporary Labor Certification, the employer next files a visa petition, Form I-129, with the USCIS. The petition requires the employer to provide information and documentation that:
- The job is in fact temporary.
- The employer has been unable to recruit qualified U.S. workers for the job.
- The employer is financially capable of paying the prevailing wage for the job.
- The employee to whom the job has been offered meets the requirements for the job.
The Visa Application
After the employer’s visa petition is approved, the prospective employee applies for a visa at a U.S. consulate abroad (normally in his or her home country). The employee must complete an application on line and submit it along with a passport and photograph. Also included should be documents showing the employee meets the requirements for the job, as well as documents establishing the employee’s intent to return to his or her country when the visa expires. The employee must also make an appointment for an interview. Further information about the visa application process is available at the State Department website.
Contact a Cambridge Massachusetts H-2B Immigration Attorney for H2-B Visa Assistance
Massachusetts H-2B immigration attorney David Ionson can guide you through the tricky H2-B visa application process to make sure your forms are prepared correctly and are well-supported by the appropriate documents. Please call Ionson Law today at (781) 674-2562 to schedule a free consultation.