Persons travelling to the USA in order to work should obtain a visa. The type of visa to be applied for depends on the type of work performed by the employee. The H-2B visa is for persons travelling to the USA to work outside the agricultural sector.
1. H-2B visa
The H-2B visa allows foreign workers to work outside the agricultural sector. It entitles them to perform manual labour. Therefore, it is particularly popular in industries such as hotels, catering and construction business.
It should be noted here that it’s illegal to perform physical labour on the basis of a business visa (B-1 visa) or a tourist one (B-2 visa).
2. Temporary work
The temporary nature of the work performed by foreign employees constitutes a distinctive feature of the H-2B visa. The employer’s need is considered temporary in the following cases:
- single occurrence – this takes place when the need to hire an employee is related to a short-term event which created a need for a temporary worker, and no employee has been engaged to perform this work in the past and no employee will be hired to do it in the future;
- seasonal demand – the need for a worker is related to the season (e.g. due to an event) and is recurring;
- peak demand – this occurs in the event that an employer hires workers for an indefinite period, but needs to temporarily complete its permanent staff due to seasonal or short-term demand, and the temporary employment won’t become part of the employer’s normal activity;
- occasional need – this arises in the event that an employer doesn’t hire permanent or full-time employees to provide services or perform work, but occasionally or sporadically needs temporary employees to provide services or work for short periods.
3. Obtaining a visa
A worker who wants to obtain an H-2B visa must be supported by an American employer. Indeed, the US employer has to obtain a temporary employment certificate from the United States Department of Labor (DOL). This document confirms that there aren’t enough qualified and willing workers in the USA to fill vacant posts. It also shows that engaging foreign workers won’t negatively affect the wages and employment conditions of American workers performing similar jobs.
After receiving a temporary work certificate, the employer submits a Form I-129 to the USCIS (United States Citizenship and Immigration Services). This form contains an application for permission to hire a foreign worker on the basis of an H-2B visa.
Only after approving the Form I-129, the worker may submit a visa application to the US embassy or consulate in his/her country. One of the elements of this stage of the visa issuing procedure involves conducting an interview with the candidate.
4. Period for which the H-2B visa is granted
The H-2B visa is granted for a fixed period. The maximum duration of stay in the USA on its basis can’t exceed 3 years. After 3 years, the worker must leave the United States and remain outside its borders for an uninterrupted period of at least 60 days. After the period in question, the employee will again be eligible for an H-2B visa for a maximum of 3 years.
Shorts travels to the United States for business or recreational purposes during the required stay abroad aren’t considered to interrupt this period, but they are also not counted toward meeting the 60-day required minimum of stay abroad.
5. Legal notice
The study is a work within the meaning of the Act of 4 February 1994 on Copyright and Related Rights (OJ 2006, No. 90, item 631, consolidated text, as amended). Publishing or reproducing this study or its part, quoting opinions, as well as disseminating in any other way the information contained therein without the written consent of Crede sp. z o.o. is prohibited.
