H-2: TEMPORARY LABOR OR NEED

H-2 status/visa can be considered for persons who do not qualify for H-1 status/visa because they are not in “specialty occupations” as defined and interpreted (generally for people who do not have bachelor’s degree). However, there are three additional major distinctions and considerations in H-2 temporary worker status/visa:

the job must be a temporary job in the U.S.; that is, not only must the alien be coming temporarily and the employee must hire foreign nationals temporarily, but the job itself must have a finite existence;

normally, there must be a determination that there are no qualified American workers available for the position;

it is difficult to obtain permanent resident status based on the same job for which the alien had H-2 status.

Types of H2 Visas

H-2A Agricultural Worker

The H-2A classification applies to an alien coming to engage in temporary or seasonal agricultural employment. It establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature.

H-2B Skilled or Unskilled Worker

The H-2B classification applies to an alien coming temporarily to engage in non-agricultural temporary employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. This option also exists for Au Pairs.

Steps to Obtain H-2 Visa

Before obtaining a final approval, all H-2 petitions have to go through 3 agencies: 1) State Local Workforce Agency (SWA); 2) Department of Labor (DOL); 3) U.S. Citizenship and Immigration Services (USCIS).

SWA will require employers to go through a process of advertising for a position to show that no Americans are found to fill the position and are immediately available. It forwards all the recruitment results to DOL. The employer must obtain a certification from DOL that there is a shortage of available, qualified U.S. workers at the prevailing wage in the area of intended employment. Based on the approved Labor Certification, the Petition for a Nonimmigrant Worker with USCIS is filed, upon the approval of which, the alien might start working for the employer (if within the country) or will have to go through a consulate abroad to receive a visa.

Period of Stay

The length of the stay on an H-2 visa is limited by the duration of the employer’s temporary need for additional workers. The maximum authorized period of stay is one year, and the visa may be extended for a total of three years.

Dependents

Dependents (spouses and unmarried children under 21 years of age) of H-2 workers are entitled to H-4 status with the same restrictions as the principal. Dependents may not be employed under the H-4 classification.