U.S. employers may petition for skilled or unskilled alien workers to meet temporary or seasonal needs in positions for which qualified U.S. workers are not available. It is important to note that the employer’s need for such services must be temporary.
The first step to hiring an H-2 worker from outside the U.S. is for the employer to apply for a temporary labor certification with the Department of Labor. These certificates are designed to ensure that the admission of foreign nationals to work in the U.S. on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers. The employer is required to file the labor certification with the petition.
A single petition may cover multiple workers if:
They will perform the same services
They will work in the same location
They are included on the same labor certification and,
They come from places that are served by the same U.S. consulate, or, if visa exempt, they will enter at the same port of entry.
It is not necessary to identify requested H-2A beneficiaries by name (unless only a single worker is needed) if they are unnamed on the underlying labor certification. H-2B beneficiaries must be named unless circumstances (e.g. emergencies) make identification by name impossible. The number of unnamed beneficiaries must always be stated on the petition.
H-2A Agricultural Worker
The H-2A classification applies to a foreign national coming temporarily to engage in temporary or seasonal agricultural employment.
Employers are also required to provide H-2A beneficiaries with a number of benefits, including:
Housing: The employer must provide free housing approved by the DOL to all workers who are not able to return to their residences the same day
Transportation: The employer must provide transportation to and from the worker’s temporary home to the workplace. When the contract period is up, the employer must provide the worker with transportation home or to their next workplace.
Meals: The employer must either provide three meals a day or facilities in which the worker can prepare food. If meals are provided, then the employer may charge each worker a certain amount per day for the three meals
Tools: The employer must also provide any tools and supplies necessary to perform the work.
H-2A Document Requirements
Before filing this petition an employer must first apply for a labor certification from the Department of Labor to demonstrate that U.S. workers are not available and that the wages and working conditions meet regional standards. The immigration petition must be filed by a U.S. employer or an association of U.S. agricultural producers named as a joint employer on the certification. It should be filed with:
An original valid temporary agricultural labor certification from the Department of Labor. If the application is denied because it is determined that U.S. workers are available but they do not subsequently appear at the work site, the petition should be filed with a copy of that agency's denial or a certification and appeal, and evidence that qualified domestic labor is unavailable; and
Copies of evidence that each named foreign national met the requirements as stated when applying for the labor certification.
H-2B Skilled or Unskilled Worker
The H-2B classification applies to an foreign national coming temporarily to engage in non-agricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. H-2B Document Requirements
Before filing this petition the U.S. employer must first apply for a temporary labor certification from the Department of Labor to demonstrate that U.S. workers are not available and that wages and working conditions meet regional standards. The U.S. employer should file the Form I-129 petition with:
an original single valid temporary labor certification from the Department of Labor (or the Governor of Guam if the proposed employment is solely in Guam), indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers; or
An original notice from such authority stating that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S, and evidence overcoming each reason why the certification was not granted; and
Copies of evidence, such as employment letters and training certificates, demonstrating that each named alien meets the minimum job requirements stated in the certification.
There is currently an annual cap of 66,000 visas for H-2B workers. There is currently no annual cap on visas for H-2A workers.
Duration of Stay
An H-2A visa is usually issued for a period of one year, and can be extended by two one-year extensions for a maximum of three years in H-2A visa.
Dependents (spouses and unmarried children under 21 years of age) of H-1B workers are eligible for H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.