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How to Obtain Temporary Hospitality, Retail, and Service Industry Workers Through the H-2B Visa

One of the biggest complaints in the hospitality, retail, and service industries is the difficulty in finding and retaining a reliable workforce. Over the past few years, there has been high turnover as companies struggle to recruit and retain workers. However, for employers who need to add to their workforce, there is the option to bring workers from other countries to the United States for a temporary period of nine months out of the year. The H-2B visa permits US employers to bring foreign nationals to the United States for the purposes of filling temporary, non-agricultural jobs, typically in the hospitality, retail, and service industries, such as hotels; ski resorts; water parks; golf courses; amusement parks; restaurants; cruise ships; and the landscaping, groundskeeping, forestry, construction, and meat/fish processing industries.


Who Qualifies for H-2B Classification?


To be eligible for an H-2B visa, the candidate must be a citizen of one of the countries on the H-2B Eligible Countries List. In addition, to qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  1. There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

  2. Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

  3. Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it falls under one of the following categories:

  • One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:

  1. An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; and that it has

  2. Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

OR:

  • Seasonal need– A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

  1. Traditionally tied to a season of the year by an event or pattern; and

  2. Of a recurring nature.

Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:

  1. Unpredictable;

  2. Subject to change; or

  3. Considered a vacation period for your permanent employees.

OR

  • Peakload need – A petitioner claiming a peakload need must show that it:

  1. Regularly employs permanent workers to perform the services or labor at the place of employment;

  2. Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and

  3. The temporary additions to staff will not become part of the employer’s regular operation.

OR:

  • Intermittent need – A petitioner claiming an intermittent need must show that it:

  1. Has not employed permanent or full-time workers to perform the services or labor; and

  2. Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

Once a company establishes that is qualifies for the H-2B visa and has the resources to support the application process, it should begin applications nine months ahead of time (by February for an October start date, or by July for an April start date in the following year).


Is There a Lottery and Cap?

Congress has set a numerical limit, or “cap” on the number of H-2B visas to be issued on an annual basis, currently set at 66,000 per fiscal year. The cap is split into two parts: 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31), and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – December 31). Because the demand for temporary workers is usually at its peak in the summer months, there are more applications for the April to December period. Over the last few years, USCIS has implemented a lottery for this period, meaning that only a portion of the applications will be selected for review. Any applications that are not selected for the lottery will be returned to the applicant with the case filing fees uncashed. To get around this competition, a company may have more success applying to bring workers to the US during the less popular October to April period.


For the second half of FY 2018, the cap filled within only 6 days. Due to the competitive nature of this visa, it is important to plan ahead and meet all government deadlines on the first day that it is possible to apply for each respective portion of the application process.


Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.


Will Additional Visas Become Available Once the Cap is Reached?


On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a temporary final rule increasing the numerical limit (cap) on H-2B nonimmigrant visas by up to 30,000 additional visas through the end of fiscal year (FY) 2019. These visas were available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. In addition, these visas were available only for returning workers (workers who received an H-2B visa or otherwise received granted H-2B status in one of the last three fiscal years).


TIMELINE OF EVENTS (starting 9 months before the intended work start date)

The application process has several steps that start well in advance of the intended job period, so it is important to begin preparation for a case at least six to eight months before the intended job start date.

  1. File Prevailing Wage Determination: 150 to 120 days before employment start date of October 1 or April 1 (about 4-5 months in advance).

  2. File Labor Condition Application and Job Order with local State Workforce Agency: 90 days before employment start date.

  3. Perform required US-based recruitment: After the certifying officer approves a Labor Condition Application (for each intended area of employment), the officer will provide directions on how to perform the required recruitment.

  4. Submit H-2B petition application with United States Citizenship and Immigration Services (USCIS): Immediately after completion of the recruitment steps and final certification of the Labor Condition Application, the applicant will submit an I-129 application and supporting evidence to USCIS. For an additional fee of $1,410, this review can be completed through Premium Processing within 15 calendar days.

  5. Employees apply for H-2B visas at US consulate abroad: Immediately after approval of H-2B visa petition, the proposed employees will submit their applications for an interview at the consulate in their home countries. Due to high demand, it may take a few weeks before an interview date is available.

  6. Employees Travel to United States: Once a visa is approved, the Employer will arrange to bring the employees to the United States, and must provide travel costs in advance, or via reimbursement after the employee completes the first week of employment.

To illustrate this timeline in further detail, the following deadlines relate first to applications for the more popular April to December visa period, and second for the October to April period: