H2B Visa for Qualified Workers 4/4

Posted on 3月 17, 2007 by Warren Wen | Category: Immigration

In previous articles, we introduced in when we can consider applying for H-2B visa, what kind of benefits H-2B visa brings to employers and how to qualify for H-2B visa.  In this article, we will explain the general procedure through which H-2B petition can be filed and approved, and what kind of documents the employers need to prepare.

Generally speaking, there are three steps in the H-2B application process: (1) filing of Temporary Labor Certificate application with the Department of Labor; (2) filing of H-2B petition with the USCIS; and (3) having H-2B visa interview with the US Embassy at overseas.

In the first step, the employer needs to file ETA-750A and a statement explaining the basis for the company’s qualification for the H-2B category to the individual State Department of Labor (DOL).  After the local DOL received the application, it will instruct and guide the employer on recruitment requirements, and refer qualified candidates to the employer for interviews.  The recruitment process is to prove that the position is temporary or seasonal non-agricultural job, and there are no qualified Americans available to take the job employer offered.  Employer needs to prepare evidence for the temporary nature of the job’s need which could include the following documents: documentation of the employment contract, evidence proving that there has been no history of a permanent position to fill the need, projected time frames, and a narrative on the short term nature of the need and reasons for any restrictions and minimum qualifications.  After these documents are prepared, the employer will post an internal ad for at least ten days at the place of employment. Then, the employer needs to file all the evidence to the DOL local office that no adverse effects on similarly employed US workers, job requirements not unduly restrictive, detailed recruitment results showing all good faith efforts etc., just as in prevailing wage request.

The second step is filing the H-2B application to the USCIS. The process may take 1 to 2 months. Upon the receipt of a notice from the DOL, employers complete related application forms including Form I-129, with all other supporting documents to the regional center. The supporting documentation includes: (a) an approved temporary labor certification or a notice that certification cannot be made, (b) countervailing evidence to rebut any notice by the Secretary of Labor that certification cannot be made, (c) a statement describing in detail the temporary situation or conditions that make it necessary to bring the alien or aliens to the U.S. and whether the need is one-time occurrence, seasonal, peakload, or intermittent.  The statement must indicate whether the situation or conditions are expected to be recurrent, and d) any other documents which can prove that the employer can afford alien worker’s salary and other compensations

The final step is the consular interview. Alien beneficiaries of an approved USCIS I-797 Notice of Action need to apply for their H-2B visas at the US embassy or consulate notified by cable or presentation of an original I-797. It will take 1 to 2 weeks. After they obtained the visa, they can finally enter the United States and work for the employer.

In closing, the employer needs to work with the DOL and the USCIS to prove the position is temporary and there are no qualified U.S. workers available to take the job. Meanwhile, it also needs to prove that the alien workers will have no adverse effects on similarly employed U.S. workers. Once the employer has enough evidence and the quota is available, getting the H-2B application approved would not be very difficult.

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.