H-2 Visa

Q: What are the differences and similarities between the H-2A and the H-2B visa?

A: The following is a list of differences and similarities between the H-2A visa and the H-2B:

  • Job type: The H-2A visa is for agricultural temporary workers. Whereas, the H-2B visa is for non-agricultural workers.
  • Period of stay: H-2A visa holders can initially stay in the U.S for no more than 1 year. H-2B visa holders can stay until the period of visa, as mentioned in the petition.
  • Extension of period: H-2A visa holders can extend their stay up to a maximum of 3 years in increments of 1 year. H-2B visa holders can extend their period if the employer says so. They can extend their period of stay to up to 3 years, in increments of 1 year.
  • Area of work: H-2A visa holders are only for the agricultural sector. H-2B visa holders are for industries such as, retail, landscaping, seasonal hospitality, manufacturing, seasonal construction and packaging.
  • Dependents: Both H-2A and H-2B visa holders are entitled to bring in their spouse and unmarried children who are less than 21 years of age. They require H-4 visa for entry into the U.S.
  • Employment for dependents: Dependents of the H-2A and H-2B visa holders are not entitled to work in the U.S.
  • Education for dependents: The dependent children of the visa holders are entitled to study in the U.S.
  • Green card intent: H-2A and H-2B visa holders are not eligible for green cards. They need to move out of U.S. after their period of work, as stated in the petition. In case of an extension, they can stay in the U.S. for a period of 3 years and are required to stay outside the U.S. for a period of 3 months, before reapplying for non-immigrant status.

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Q: What are the privileges enjoyed by an H-2B visa holder?

A: H-2B visa holders enter the U.S. for non-agricultural work. They are temporary workers and can enjoy the following benefits:

  • An H-2B visa holder can enter the U.S. before the period of stay. There will be a specific date of employment mentioned in the notice of action, Form I-797A/B. The H-2B visa holder is entitled to enter the U.S. 10 days before this date.
  • The H-2B visa holder can enter the U.S. for temporary work, including for:
    • Intermittent needs
    • One-time occurrence
    • Peak-load requirements
    • Seasonal needs that are recurring
  • An H-2B visa holder can freely travel in and out of the U.S. until the validity period of the visa has ended.
  • If the visa holder has a new job offer, he can change jobs. The employer is the one who is H-2B certified, not the worker. This certification is not transferrable from one employer to another and, moreover, it is issued only for a specific job. The certification also includes details of specific number of workers and employment period. Changing jobs is possible by the H-2B visa holder, if the new employer can obtain an H-2B certification for the employee.
  • Dependents of an H-2Bvisa holder, such as the spouse and unmarried children below the age of 21, can enter and stay in the U.S. with an H-4 visa.
  • The H-2B visa holder enjoys all the employee benefits while in U.S.

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Q: What are the qualification criteria for an H-2B visa?

A: The H-2B visa is for both skilled and unskilled workers. It is not like the H-1B visa that is meant only for workers educated which a bachelor’s degree or higher. There are various criteria that must be met in order to qualify for an H-2B visa, which include:

  • The Federal Register contains a list of countries that are eligible for the H-2B visa. Only people from those countries are qualified for an H-2B visa. However, there are certain criteria for exception and, if the participant meets those exception criteria, he can be eligible for an H-2B visa even if he does not come under the list of countries mentioned in the Federal Register.
  • The H-2B visa applicant must possess a job offer from the U.S. employer for a seasonal, peak load, intermittent, or one-time job.
  • The country of the visa holder must cooperate in issuing travel documents for its citizens once subject to final order of removal from the U.S.
  • The H-2B visa holder must intend to return home upon the expiration of the visa or upon completion of job.
  • The job must be non-agricultural in nature.
  • The period for which the employer needs a temporary worker has to be clearly defined.
  • People who want to enter the U.S. for short-term business projects and people who want to be trainers for other workers can get H-2B visa.
  • Entertainers, who cannot meet the criteria for O or P visa, are also qualified for H-2B visas. These people can enter U.S. for specified bookings. In this case, the specified bookings are considered temporary positions.

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Q: What is the process for obtaining an H-2B visa?

A: The H-2B program process involves a series of steps, wherein both the employer and the applicant are involved.

  • The first step involves a domestic search of workers by the employer for the proposed job. After this occurs, the employer must demonstrate non-availability of U.S. workers for the job.
  • The employer must apply for a temporary labor certification from the U.S. department of Labor (DOL).
  • Once the employer gets a temporary labor certification form the DOL, it has to submit the Form I-129 to the United States Citizenship and Immigration Services (USCIS) along with the temporary labor certification.
  • The employer then intimates the workers.
  • Workers outside U.S. apply for a H-2B visa. The prospective workers can either apply for a visa at the U.S. embassy or consulate or with the U.S. Department of State (DOS). Once this is complete, they have to seek admission to the U.S. at a port of entry with the U.S. customs and border protection (CBP).
  • This is followed by scheduling an appointment for visa interview. This has to be done at the U.S. embassy or consulate in your country. In order to schedule an interview, the receipt number in the Form I-129 (approved petition for non-immigrant worker) or Form I-797 (notice of action) has to be provided.
  • Then you should prepare for the interview. After scheduling the interview, the applicant must gather all the documents required for the interview process, including the passport, copy of appointment letter, receipt number, and other documents. The medical examination must be completed prior to the visa interview in order to avoid visa denial.

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Q: What are the criteria and rules for the dependents of an H visa holder to enter the U.S.?

A: An H-2 visa holder can bring their dependents, including their spouse and unmarried children below the age of 21, with them to the U.S. In order to enter into U.S., the dependents of an H-2 visa holder must obtain an H-4 visa.

Dependents of H-2 visa holders are eligible to hold a driving license, a bank account, and can also get an Individual Tax Payer Identification Number (ITIN) for any U.S. tax purposes. Dependents can study either part-time or full-time in the U.S. while on their H-4 visa. They do not require an F-1 student visa. However, dependents are not eligible for a social security number and they cannot work while in the U.S.

The dependents of an H-2 visa holder can stay in the U.S. as long as the H-2 visa holder is entitled to stay here. Their visa will expire upon the expiration of the H-2 visa holder’s visa.

To obtain an H-4 visa in order to be able to enter the U.S. with the H-2 visa holder, the prospective visa holder and dependents should visit the U.S. Consulate located in their home country and apply for both the H-2 visa and the H-4 visa simultaneously. All required documents should be brought to the U.S. Consulate at this time. If the H-2 visa holder is in the U.S. and the dependents are overseas, the spouse or children may apply for an H-4 visa at the U.S. Consulate in the home country.

H-4 visa holders can change their status late to anyone of the following: H-1, F-1, B-1, B-2, or other non-immigrant statuses, depending on their requirements. H-4 holders are allowed to stay in the U.S. for a maximum of six years.

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Q: What are the benefits and drawbacks of an H-2A visa?

A: An H-2A visa provides a legal means of entry into the U.S. for temporary, seasonal agricultural workers. The visa allows foreign nationals to enter into U.S. in order to perform agricultural labor or services on a temporary basis. Work performed only during certain seasons of the year is known as seasonal job. In the case of H-2A workers, the temporary job will be related to the production and harvesting of crops.

The temporary workers who move into the U.S. on an H-2A visa obtain various benefits. The H-2A visa is flexible, apart from its temporary nature of job. The following is a list of some of the advantages of an H-2A visa:

  • Flexibility to move in and out of U.S during the visa period
  • Extension of visa’s in certain situations
  • Entry clearances for dependents
  • Employee benefits as that of other U.S employees
  • Certain housing and education benefits, like free public education to the dependent children
  • Change to new jobs, if an offer letter from a new employer is available
  • H-2A visa holders are exempted for social security tax

Certain limitations or drawbacks are encountered by H-2A visa holders, however. The following is a list of the disadvantages of an H-2A visa:

  • The dependents of H-2A visa holders are not allowed to work
  • A 45 days waiting period is mandatory between the date of application and the issuance of the visa
  • Changes in the availability of U.S. citizens for agricultural jobs may be a barrier for the H-2A visa holders to apply for an extension
  • The job can only be for a year or less

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Q: What is the process for an H-2A visa?

A: An individual is not entitled to apply for an H-2A visa unless an employer sponsors him or her. Obtaining an H-2A visa has three stages.

  • Temporary labor certification by the U.S. employer: This is to ensure that the employment of foreign, temporary agricultural residents will not affect the U.S. agricultural workers at any cost. A labor certification must be filed by the employer at the State Workforce Agency (SWA). This must be done at least 45 days before the day on which employees are required. The H-2A certification is valid only for a period of a year. The certification can be filed in any of the three following ways:
    • In person with the SWA or with the appropriate regional administrator
    • Mailed to the SWA, in this case mail receipt is essential
    • Through guaranteed commercial delivery
  • Filling of an H-2A petition: The H-2A petition is filed using Form I-129 along with Form I-129 H with the U.S. Citizenship and Immigration Services (USCIS). The H-2A petition must include a temporary agricultural labor certification and evidences to showcase that the employees mentioned in the petition meet the minimum job requirements as per the certification.
  • H-2A visa application at a U.S. consulate: The Form I-797 A or B is the essential requirement for an H-2A visa application. This is the approval notice that is sent to the employer after approving the petition. Other documents that are to be included in the visa application are:
    • DOS Form DS-156 (nonimmigrant visa application)
    • Copy of passport
    • Two color photographs showing full face
    • Proof for minimum job requirement

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Q: What are the rights and responsibilities of an H-2 visa holder?

A: The number of H-2 workers moving into the U.S. is increasing year-after-year. If you are an H-2 worker or a family member of an H-2 worker, it is essential that you understand the various rights and responsibilities of an H-2 visa holder.

The following is a list of some of the various rights of an H-2 visa holder:

  • H-2 visas are “multiple entry visas,” where the person is allowed to return to their home country and stay there for a while and then return back to the U.S.
  • H-2B workers are entitled to legal rights pertaining to employment. They are to be treated like other employees in terms of wages and compensations and are provided freedom from discrimination in terms of color, race, nation of origin, etc.
  • The H-2B worker is entitled to change jobs, in case he possess a new offer from an employer.
  • H-2B workers can return to their home country in case of illness, family emergencies, and upon resigning the job.
  • H-2A workers are promised payment for ¾ of the period of work as in the contract, even when there is no work.
  • The employer of H-2A visa holders must guarantee housing and transportation to and from the work site.

The following is a list of some of the responsibilities of an H-2 visa holder:

  • The H-2 visa holder has to leave the U.S. on the expiration date of the visa. However, a period of 10 days is allotted to H-2 workers to arrange their affairs in order to travel back to their home country.
  • H-2 workers are supposed to have a photocopy of the passport and the visa in order to avoid any negative scenarios. For example, if they lose their passport or visa they can use the photocopy to get back the lost one.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: What are the requirements for an H-2A employer?

A: There are certain requirements for the H-2A program. The employer has to satisfy certain criteria in order to be eligible for H-2A workers. The following is a list of some of the requirements for an H-2A employer:

  • The employer must demonstrate lack of U.S. workers for temporary work.
  • The employer must submit an H-2A petition, which is a valid temporary labor certification from the Department of Labor (DOL).
  • The employer must showcase a temporary job opening in the agricultural sector.
  • They must also guarantee that the employment of H-2A employers will not have any adverse effects on the wages and working conditions of the U.S. employees in the same sector.
  • The employer must be a corporation, individual proprietorship, or partnership firm.
  • Associations of agricultural producers are entitled to file as an individual employer or agent of its members.

There are certain conditions that are to be satisfied by the H-2A employer, as well. These include:

  • Recruitment: The employer must partake in various positive recruitment processes that are equivalent to those done by the non-H-2A agricultural employers. These include advertisements in mass media and other processes. After this process, if they are not able to find U.S. workers for the temporary job, they can then proceed with the process.
  • Wages: The rate of pay must be the same for both H-2A employees and U.S. workers.
  • Housing arrangements: The employer must make proper housing arrangements for the employees who are not able to return to their homes on the same day of work.
  • Food arrangements: The employer can either provide meals to the employees three times per day or must furnish cooking facilities for the employees, free of cost. In the case that the employer serves three meals per day, he may charge a fee for this service.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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Q: How do I know if my job will qualify for an H-2B visa?

A: There are various definitions that must be met in order for your job to qualify for an H-2 visa.

The job must be a “one-time occurrence.” This means that the employer has to show that it has not employed workers to perform the services or labor in the past and that it will not need workers to perform those services in the future, or that it has an otherwise permanent employment situation but a temporary event of short duration has created a need for this temporary occurrence.

There must be a “seasonal need.” The employer must show that the services or labor is traditionally tied to a season of the year with an event or pattern that is recurring in nature. The employer should specify the period(s) of time during the year in which it does not need the labor or services. The employment will not be considered seasonal if the period during which the labor or services is not needed is subject to change or is unpredictable or if it is considered a vacation period for the employer’s permanent employees.

There must be a “peak-load need.” The employer must show that it regularly employs permanent workers to perform labor or services at the place of employment and that it needs to supplement this permanent staff on a temporary basis due to a short-term or seasonal demand. The employer must also show that the temporary addition to the permanent staff will not become part of the employer’s regular operation.

There must be an “intermittent need.” The employer must show that it has not employed full-time or permanent workers to perform the labor or services, but that it only intermittently or occasionally needs temporary workers to perform the labor or services for short periods.

Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.

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