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H2B Visa for Qualified Workers 3/4

Posted on April 03, 2007 by Warren Wen | Category: Immigration

H-2B as an Option for Companies in Need of Qualified Workers 3/4

In previous articles, we have briefly introduced the benefits and the basic requirements to be met by companies to bring foreign workers to work in the United States under H-2B visa.

Compared to other non-immigrant working visas such as H-1B, L and E, one of the most challenging parts in applying for the H-2B is to prove the job which is offered to foreign worker is “temporary” in nature.  In order to help the employers to better understand what “temporary” means in the H-2B visa context, we will explain the two key points regarding the temporary nature of the job that is offered to H-2B employee in the following:

A. Temporary Nature of the Job

Generally speaking, the “temporary” nature of the job has more to do with the “Needs” than the “Position”. As a result, 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 the prearranged date when each alien employee will promptly return to their countries.

B. Specific Tests of Temporary Need:

In general, foreign workers can apply for the H-2B visas if they are going to come to the United States to do the following four types of work:

1. One-Time Occurrences: Not a Past or Future Planned Job. Some of the examples include the following

• Home health care worker needed for a patient’s current care;
• Nanny needed only until an infant predictably reaches the minimum age for admission into a child day care center;
• Computer technicians needed to address the complicated millennium bug;
• Foreign professionals needed to train U.S. workers, or
• Construction workers needed to repair hurricane damage;

Another good example of a one-time occurrence need is an employer’s purchase of used heavy equipment which requires complete overhaul or retrofitting thereby necessitating the temporary services of diesel mechanics or other skilled workers who are not ordinarily on the payroll.  An example of the employment situation which is otherwise permanent that requires the temporary services of the alien might be additional chefs needed at a restaurant to cater to the Olympic Games. Note, however, that job vacancies caused by labor shortages in permanent positions do not qualify for the H-2B visas.

2. Seasonal Needs: Recurring jobs that are traditionally tied to a season of the year by an event or pattern. The employment is not seasonal if the period during which the service or the labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees. (e.g. ski instructors, specialized fisheries technicians, and etc.)

Examples include deckhands needed aboard the fishing vessels which harvest seasonal shrimp or landscape laborers needed during the growth seasons in spring, summer, and fall.  The regulations also require that the employer specify the dates during which it does not need the seasonal labor.  Additionally the employment will not be considered seasonal if the period in which the service or labor is not needed is “unpredictable or subject to change.”

3. Peakload Demands: Temporary needs associated with unusual demands of single construction projects. The temporary addition to permanent staff should not become a part of the petitioner’s regular operation. (e.g. special expertise or additional positions on one-time complex or large-scale projects, and etc.)

Examples of peakload needs include hospitality workers, construction workers employed to a single project and highly skilled trainers needed to upgrade an employer’s workforce.

4. Intermittent Needs: Additional labor or services needed “occasionally” for short periods – Temporary needs created by the illness or injury of a US executive or worker in a job position for which available U.S. replacements are unavailable at this time, occasional upgrades to foreign components in aircraft or high tech equipment (e.g. technicians upgrading foreign machinery and 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.