H-2B Visa Program Fills Landscape Employers’ Needs For Seasonal Jobs

To partake in the H-2B visa program, an employer must prove the temporary nature of the job. The requisite temporary job need can arise in one or more of four categories:

1. One-time occurrences (e.g., foreign professional needed to train U.S. workers);
2. Recurring seasonal jobs such as a landscape laborer;
3. Peakload demands (e.g., special expertise or additional positions on one-time complex or large-scale projects; and
4. Intermittent/occasional jobs (e.g., technicians upgrading foreign machinery).

The Immigration and Naturalization Act test of "temporary services or labor" focuses on the temporary nature of an employer’s need, not whether an ongoing job opening is being offered to a particular alien for a temporary or fixed time. The test for the temporary nature of the employer’s job is determined on whether the needs are seasonal, peakload, intermittent or on a one-time occurrence as defined in the regulations.

In all cases, even though the H-2B visa can be issued for up to one year, it is assumed that the temporary need has a clearly defined beginning and end, which will terminate in a year or less by a prearranged date when each alien employee will promptly return to his/her home country. The temporary nature of needs lasting longer than 10 months are suspect and must be justified. In effect, though a dual consequence of the temporary nature of the job is that the work is temporary, H-2B workers do not qualify for temporary work unless the underlying job itself is temporary.

To show that an employer’s temporary need cannot be satisfied from the U.S. labor force, employers must convince four agencies that the temporary need satisfies applicable H-2B requirements:

1. State Employment Security Agency (SESA) - The SESA will receive a Labor Certification Application, review the temporary nature of the proposed job and direct employers in completing required recruitment efforts.



2. U.S. Department of Labor (DOL) - The DOL regional office reviews the SESA recommendations regarding labor certification and issues the necessary temporary labor certification or denial thereof to the employer.



3. Immigration and Naturalization Service (INS) - The INS regional center with jurisdiction over the area of employment receives the employer’s petition, reviews the DOL "advice" on labor certification, determines whether the job itself is really temporary, and determines whether to issue an H-2B Notice of Approval.



4. Department of State (DOS) Consular Offices - Upon notice of INS approval to a DOS overseas consular office designated by the employer, beneficiaries may apply for H-2B visas and enter the United States.

It usually takes approximately four to five months to process this visa and have someone enter on it. An employer would have to plan in advance if they would want to use this visa category.

The Immigration and Nationality Act has capped H-2B workers at 66,000 per fiscal year since 1992. Family members are not subject to the cap.