Whether the need is for hospitality services during a peak season or ski instructors in the winter months, the H-2B program is available to U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. The need of the U.S. employer must be temporary, regardless of whether the job position to be filled by the foreign national can be described as temporary. The need is considered temporary by USCIS if it is a:
- Seasonal need: work that is traditionally tied to a season of the year and recurring in nature, e.g. amusement park workers in the summer or ski resort workers in the winter. Generally, the need is considered seasonal if the business completely shuts down for a season.
- Peakload need: work that needs to supplemented to the permanent staff who ordinarily provide services or labor at the place of employment due to a seasonal or short-term demand such as hospitality services or production demands for the Christmas season.
- Intermittent need: when the employer demonstrates it has not employed permanent or full-time workers to perform services or labor but occasionally or intermittently needs temporary workers to perform services or labor for short periods. The temporary additions to staff will not become part of the employer’s regular operation.
- One-time occurrences: work needed for a temporary event of short duration such as a worker needed to train other workers in a technical new program the employer is implementing.
Employment of the H-2B worker must be on a full-time basis. A statutory numerical cap on the total number of foreign nationals who may be issued the H-2B visas exists in the amount 66,000 per fiscal year. The fiscal year is from October 1st through September 30th with 33,000 visas available for the first half of the fiscal year (October 1 – March 31) and 33,000 for the second half of the fiscal year (April 1- September 30). Only nationals from certain countries are eligible to participate in the H-2B program. A temporary labor certification is required from the Department of Labor before an employer may file for H-2B workers to ensure there are not enough U.S. workers who are able, willing, qualified and available to do the temporary work and H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
A high demand exists for the H-2B visa. On July 19, 2017, the Departments of Homeland Security and Labor published a joint final rule increasing the H-2B cap limit of an additional 15,000 visas for fiscal year 2017 only. Employers requesting these additional visas must demonstrate an irreparable harm without the ability to employ the temporary workers.
In all cases, timing considerations are extremely important for employers to examine with counsel in order to secure the needed H-2B temporary workers. For more information, please contact Dana Rifai.