Telephone: (334) 832-9090
E-mail: usvisa@visaus.com
Copyright 2002, Boyd F. Campbell, All Rights Reserved.
H-2B visas for temporary nonagricultural workers
By BOYD F. CAMPBELL
Attorney at Law and Civil
Law Notary
The
process for receiving authorization to hire temporary nonagricultural workers
is too complicated for the type of one-page article on immigration law
topics that I like to write. But this format does provide space to
give you some basic information, which you should not use unless you are
prepared to spend considerable time wandering through a bureaucratic maze.
Basically
— and this is very basic — the prospective employer obtains labor certification
for the temporary nonagricultural worker positions, including tree-planters
and domestic servants, from the local employment service. The employment
service will then issue recruiting instructions to the prospective employer,
including how to advertise the availability of the positions, and the U.S.
Department of Labor (DOL) may later issue a certification. The application
with the Immigration and Naturalization Service (INS) follows.
The
H-2B visa is generally valid for one year or less, although the regulations
recognize that there may exist extraordinary circumstances in which temporary
services or labor might be required for longer than one year. Generally,
the prospective employer must demonstrate the temporary, nonagricultural
worker is coming to the United States to perform temporary services or
labor, and "is not displacing United States workers capable of performing
such services or labor, and whose employment is not adversely affecting
the wages and working conditions of United States workers."
Although
the prospective employer uses the same application used for a permanent
labor certification, H-2B labor certifications are on a fast track.
And although obtaining labor certification from the state employment service
is important, it is deemed to be a recommendation only, and the H-2B labor
certification can be denied by the DOL.
The
prospective employer must also establish to the satisfaction of DOL and
INS that the proposed employment is temporary, and is a "one-time occurrence,"
a "seasonal need," a "peakload need," or an "intermittent need."
There are many ways for prospective employers to show that their need is
temporary and of a nature that will be approved for labor certification.
If labor certification is denied by the state employment service, its determination
may be rebutted in a showing to the regional DOL. DOL is charged
with making these determinations, so its findings are generally accepted
by INS.
The
prospective employer must also establish that the prospective temporary
worker meets the certification's minimum employment and job training requirements.
Evidence may be in the form of past employment documents, company payroll
and tax records, or affidavits. Certificates of education and training
and other evidence may be used to support this.
An
approved labor certification does not mean that INS will accept the visa
application. This means that the prospective employer must make the
same case (slightly altered) to INS that it makes to DOL and the state
employment service.
The
maximum period for which a temporary worker may be admitted to the United
States is three years. After that, the worker may not receive an
extension or a change in status to another nonimmigrant visa classification.
A
period of six months outside the United States allows the temporary worker
to re-enter in H-2B status based upon a new labor certification and a new,
approved H-2B visa.
Prospective
employers must agree to provide return transportation costs for any H-2B
worker who is dismissed from employment, for any reason, prior to the end
of the approved stay.
WARNING: A foreign national may not accept an offer of employment in the United States unless he or she is authorized to do so by the INS. Foreign nationals who enter the United States on H-2B visas may work for the employer specified on their visa, but they may not leave their employment and go to work for another employer without first obtaining a new visa. If you are a U.S. employers and would like to know more about this visa, you may call the Immigration Law Center, at (334) 832-9090. If you would prefer to contact a U.S. immigration lawyer near you, please call the American Immigration Lawyers Association in Washington, D.C., at (202) 216-2400.
Boyd F. Campbell is a member of the American Bar Association (ABA), the American Immigration Lawyers Association (AILA), and the Alabama State Bar (ASB). He served as Chair of the Immigration Law Committee of the ABA's General Practice, Solo & Small Firm Lawyers Section, and was a member of the ABA's Coordinating Committee on Immigration Law from 1994 to 1998. He is also a memer of the ABA's International Law Section. Mr. Campbell served as Chair of the International Law Section of the Alabama State Bar from 2000 to 2002. He has practiced international, immigration, and federal employment law in Montgomery, Alabama, since 1988. Mr. Campbell is listed in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. Access to this database of lawyers is available on the World Wide Web by subscription: www.bestlawyers.com. In August, 2001, Mr. Campell was appointed Alabama's first practicing civil law notary by the Alabama Secretary of State.
Questions or comments
about this article may be directed to:
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
USA
Telephone: (334) 832-9090
E-mail: usvisa@visaus.com
NAVIGATION: Back to the Immigration Law Center Home Page: CLICK HERE