H-2B Application

Application Process

The application process for the H-2B Visa is complicated and time-consuming to complete.  Generally speaking, from start to finish, the entire process is typically takes 120-150 days to complete.  Given the competitive and time-sensitive nature involved in successfully obtaining an H-2B Visa, it's best to consult an experienced immigration attorney to help navigate the process.  An experienced immigration attorney can, not only help to navigate the application process, but also recommend optimal timing for the completion of critical steps in the application process.   Below you will find a basic description of the steps involved in this application process.

STEP 1 -  The company petitioning for the H-2B Visa is required to submit an application to the US Department of Labor for temporary labor certification.

• This application must be completed and approved by the  US Department of Labor prior to submitting any request to the USCIS for an H-2B Visa.
• The Temporary Labor Certification application will be evaluated by the US DOL based upon several parameters
• The US DOL will first seek to determine that:
• There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers; and
• The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

• To participate in the H-2B program, an applicant must:
• Be an employer with a valid Federal Employer Identification Number (FEIN);
• Have a place of business (i.e., physical location) in the United States; and
• Have a means by which it can be contacted for employment.

• The employer's job opportunity (opportunities) must be:
• Temporary (i.e., nine months or less, except one-time occurrences);
• Full-time (i.e., 35 or more hours per week); and
• Non-agricultural employment within a specified area(s) of intended employment.

• The employer applicant must establish that its need for non-agricultural services or labor is temporary in nature, regardless of whether the underlying job is permanent or temporary.  Temporary need must be established as one of the following:
• One-time occurrence;
• Temporary Labor Certification may be approved for up to three years
• Seasonal need;
• Peakload need; or
• Intermittent need.
• All temporary needs (except a One-Time Occurrence need) will not be approved for longer than nine months

STEP 2 - After the US DOL approves the Temporary Labor Certification, proof of this approval along with Form I-129 must be submitted  to USCIS for consideration.

• Submission of Form I-129 should only be completed after receiving approval for Temporary Labor Certification from the US DOL
• Proof of Temporary Labor Certification must be submitted with Form I-129 in order for the application to be processed
• If the Temporary Labor Certification was submitted via the US DOL "FLAG" system, a printed copy of the "final determination" will be accepted as valid proof of the approval

Step 3: Once the H-2B Visa has been approved by USCIS, employers must have the prospective foreign employee apply for approval to enter the United States.

• Approval to enter the United States is requested via application Form DS-160
• The DS-160 must be filed with the US Department of State or consulate in the prospective employees home country
• Admission into the United States at a port of entry must be requested from the US Customs and Border Patrol
  

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