H-2A and H-2B Visa Updates!

H-2A and H-2B Visas, also known as “Temporary Worker” Visas, are an increasingly popular option for U.S. employers struggling to fill temporary positions in their company to hire foreign workers of all skill levels from eligible countries (see list below) who wish to come and work for a brief period in the United States. H-2A visas are awarded to foreign employees filling agricultural positions, whereas H-2B visas are for non-agricultural temporary positions, often in the construction, trucking, landscaping, painting, forestry, remodeling, and hospitality fields.

Interested to know more about the H-2A and H-2B Visa? Read on…

H-2 Visas may be granted to foreign temporary workers for positions which fall into one of the following categories:

1)      Recurring Seasonal Need, for regularly occurring seasonal positions.

2)      Intermittent Need, for occasional temporary positions in companies who have no need for full-time staff.

3)      Peak-Load Need, for extra staff positions that need to be filled during particularly busy periods.

4)      One-Time Occurrence, for a short, one-time position which needs to be filled.

As the U.S. economy continues to pick up steam post-COVID, with an increasing number of projects being started, many workers are needed to get these ventures off the ground. A lack of able and willing workers in certain fields has been a particular issue for many employers post-COVID, making H-2 Visas such an attractive option for employers and foreign employees alike.

Once a U.S. employer has decided they wish to hire an H-2A or H-2B worker for a position coinciding with one of the above-mentioned categories, they must prove the following:

·       Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. This often includes putting out job advertisements and demonstrating the lack of eligible candidates available.

·       Show that employing H-2A or H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. USCIS puts this requirement in place to ensure that the H-2 Visa does not become a way for companies to simply hire cheap, foreign labor and drive down the average U.S. salary for in-demand temporary positions. Foreign temporary workers must be fairly paid, with fair working conditions and wages detailed in their application.

·       Obtain a Temporary Labor Certification from the U.S. Department of Labor.

·       Submit said Certification, along with the relevant H-2 Visa application forms, to USCIS.

Our attorneys will provide expert guidance and assist you with each and every one of these steps, to ensure that no costly errors are made, and the process goes as smoothly as possible. Applying for an H-2A or H-2B visa can often be complex; it is essential to have a qualified legal professional on your side.

After filing an H-2 Visa application, most foreign applicants must attend a visa interview at a U.S. Embassy or Consulate in their home country before seeking admission to the United States once this visa has been granted. There are rare cases where applicants can directly seek admission to the United States at a U.S. port of entry without having previously attended a visa interview, through Customs and Border Protection (CBP), but this is unusual.

The countries eligible to participate in the H-2A and H-2B visa programs for the next year (2022) are as follows:

• Andorra

• Argentina

• Australia

• Austria

• Barbados

• Belgium

• Bosnia and Herzegovina

• Brazil

• Brunei

• Bulgaria

• Canada

• Chile

• Colombia

• Costa Rica

• Croatia

• Czech Republic

• Denmark

• Dominican Republic

• Ecuador

• El Salvador

• Estonia

• Fiji

• Finland

• France

• Germany

• Greece

• Grenada

• Guatemala

• Haiti

• Honduras

• Hungary

• Iceland

• Ireland

• Israel

• Italy

• Jamaica

• Japan

• Kiribati

• Latvia

• Liechtenstein

• Lithuania

• Luxembourg

• North Macedonia

• Madagascar

• Malta

• Mauritius

• Moldova

• Mexico

• Monaco

• Montenegro

• Mozambique

• Nauru

• The Netherlands

• Nicaragua

• New Zealand

• Norway

• Panama

• Papua New Guinea

• Paraguay

• Peru

• Poland

• Portugal

• Republic of Cyprus

• Romania

• Saint Lucia

• San Marino

• Serbia

• Singapore

• Slovakia

• Slovenia

• Solomon Islands

• South Africa

• South Korea

• Spain

• St. Vincent and the Grenadines

• Sweden

• Switzerland

• Taiwan

• Thailand

• Timor-Leste

• Turkey

• Tuvalu

• Ukraine

• United Kingdom

• Uruguay

• Vanuatu

*Please note, this list is subject to change. The United States government may add countries at any time. The designation period of the above countries is 1 year, after which any country can be removed if they are found to have been acting against the interests of the United States or not complying with the terms and conditions of the H-2 visa programs.

How long can an H-2 Temporary Worker stay in the U.S.?

The maximum period of stay for H-2A and H-2B temporary workers is 3 years, granted for a maximum period of 1 year at a time. USCIS generally grants H-2 classification for the period of time authorized on an applicant’s temporary labor certification, and a new, valid temporary labor certification is required for each extension request.

If a foreign temporary worker stays the maximum total period of 3 years in the United States under H-2 (or a combination of H-2 and L) classification, a requirement is then triggered for said worker to remain outside of the country for an uninterrupted period of at least 3 months before being allowed to re-enter under the same classification.

Who Can Accompany an H-2 Visa Holder?

An H-2 visa holder’s spouse and any unmarried children under the age of 21 (dependents) may accompany them by seeking admission to the United States under the H-4 Visa classification. However, these family members are not eligible to work whilst in the United States under this classification.

Pros and Cons of the H-2 Visa

There are many benefits to both H-2 Visa programs. They provide an excellent opportunity for U.S. employers to combat current worker shortages in a legal and legitimate way, as well as to meet the need for recurring temporary positions that pop up on a regular basis within their business. For foreign temporary workers, the opportunity to come over to the United States, improve their skills, earn a U.S. salary and often send money back to their families in their home countries can also be hugely beneficial.

However, there are some risks. Due to increased demand, there is an annual cap on H-2B visas, with only 66,000 visas released each year (33,000 in April and 33,000 in October). Recently, due to the sheer number of applicants, USCIS has employed a lottery system to decide who is granted an H-2B visa, meaning there are no guarantees that employers will be successful in their petition for an H-2 temporary employee.

Nevertheless, potential future government plans to make returning H-2B workers exempt from the visa cap amount could mean many more opportunities for H-2B visas to be granted, if this measure is passed. Furthermore, Joe Biden’s administration announced in the summer of 2021 that they will be releasing an extra 22,000 visas over the next year to help meet the growing demand for temporary workers, with 6,000 of these being specifically reserved for candidates from Honduras, El Salvador and Guatemala.

Another important factor to consider is the necessity to plan in advance. Obtaining an H-2 Temporary Workers Visa takes at least 4 months, meaning employers need to be well aware of their future needs for temporary workers and leave enough time to carry out the application process. Now is the perfect time to start thinking about preparing for the next round of applications, so please don’t hesitate to get in touch!  

Future Possibility of an H-2C Visa

Currently, government officials are working towards the possibility of passing the Workforce for an Expanding Economy Act, which would create an H-2C category for temporary non-agricultural workers to fill certain jobs that have remained open for a certain amount of time and do not require a bachelor’s degree or other form of higher education. This H-2C visa would only be available for certain occupations, in areas of the United States where there are specific unemployment rates, and employers would need to use E-Verify to check the identity and employment eligibility of foreign worker applicants