H2B Visa Definition of Temporary Work

Posted on 5月 08, 2007 by Warren Wen | Category: Immigration

What Does “Temporary Work” Mean in H-2B Application?

In the last article, we analyzed what types of business can use H-2B visa to bring qualified workers into the United States.  Since then, many readers have expressed their confusion about the meaning of the word, “temporary” in the H-2B visa context which we will address in this article.

Mr. Wang asked:

I have a construction business in the United States. Currently I’m in need of a lot of construction workers for a big project, but it is hard to find enough qualified people in the U.S.  As a result, I am thinking about bringing foreign workers into the U.S.  One of my friends has told me that the only way for me to bring foreign workers into the U.S. is to apply for immigration visa for the alien workers because the positions I provide would be permanent by nature, not temporary as required by the H-2B visa.  From reading the articles from your law firm, I understand that it will take several years before the foreign workers can come to the U.S., if I applied for immigration visas. But, H-2B looks like the only reasonable option for me to catch this business opportunity.  I would like to know what ‘temporary’ means in H-2B visa application process.

Answer:

As we have mentioned in previous articles, there are two ways to cope with the labor shortage: One is to apply for an employment-based immigration visa and the other is to apply for an H-2B visa. Applying for immigration visa for alien workers may solve the problem of labor shortage permanently, but it would take too much time.  This would not be very suitable for the employers who are in urgent need to find qualified workers. For those employers, H-2B visa would be relatively better.

Generally speaking, the term “temporary” focuses on the needs, rather than on position.  That is to say, H-2B visas allow the aliens to fill some permanent positions for certain temporary needs resulting from an unforeseeable event. It is assumed that the temporary need has a “clear beginning and end”, which will self-destruct in a year or less by prearranged date when each alien employee will promptly return to their countries, e.g., construction workers needed to repair hurricane damage.

Therefore, even if some job positions are of the permanent nature, they can apply for the H-2B visas as long as the employers are able to prove that the needs for the task are temporary.  Mr. Wang is just in such a situation.  Even though the construction positions his company provided could be permanent positions, his need is still temporary. If he could prove this to the USCIS, he could successfully apply for H-2B visa and bring alien workers from outside the United States.

In fact, not only Mr. Wang can apply for H-2B visas for his alien employees, any other employers in labor-intensive non-agricultural businesses in the United States can apply for H-2B visas for alien workers based on their temporary needs.  The companies in labor-intensive non-agricultural businesses would be the companies in food-processing, hotel, construction, healthcare, landscaping, logging, manufacturing etc.

This article is only for your reference. Please do not apply mechanically to any exact cases. You are welcome to consult our attorneys at Liu & Associates, P.C. For contact information, please click here.