H-2 VISAS FOR UNSKILLED WORKERS

Definition

1. H-2 category is divided between temporary workers performing "agricultural labor or services ... of a temporary or seasonal nature," and temporary workers performing "other temporary services or labor." 

2. To qualify:

   • Applicant must be coming temporarily to U.S.

   • Applicant must be performing temporary services/labor.

   • Employer must demonstrate that no U.S. workers capable of performing such service/labor are available in U.S. Under the H-2A program there is a 50% rule which requires employers to hire qualified U.S. farm workers who apply for the job until 50% of the period of the fees or contract has been completed. 55 Fed. Reg. 29,356 (July 19, 1990). Employer must engage in serious recruitment including use of electronic data banks. Memo No.17-97, Farmer, Admin. for Regional Management (Jan. 6, 1997), reprinted in 74 Interpreter Releases 835-37 (May 19, 1997).

Requirements:

1. Must get temporary labor certification demonstrating that:

   • No USC/LPR workers are available for the position.

   • Employment of aliens will not adversely affect wage rate and working conditions of similarly employed workers in the U.S.

   • Meet guidelines of Dept. of Labor [Field Memo No. 207.71] for H-2Bs:

     1. Is job in employer's regular business; duties/ equipment similar to regular work?

     2. Is time period for visa reasonable?

     3. Are the number of aliens requested reasonable for job?

     4. Does employer frequently request H-2s?

     5. Are there any alternatives?

   • Distinguish temporary and part-time jobs.

   • Not available to doctors.

2. Position is temporary

   • To determine whether job is temporary INS does not look to the nature of the duties, but rather, to the nature of the employer's need. 

3. Procedure.

   • Obtain labor certification approval. [Agriculture]. 45-day notice; advertising; consulting with local unions; documentation of effort to recruit U.S. workers.

   • Submit approval with I-129 to INS. In "emergent situations" where all the beneficiaries are not known, multiple petitions may be filed for beneficiaries subsequent to the initial filing. 

     1. Dept. of Labor's approval or denial given great weight by INS.

     2. Must demonstrate that there is no labor dispute at the work place.

   • Substitution of Beneficiaries. INS may substitute H-2B beneficiaries where (a) petition was approved for unnamed beneficiaries; (b ) the approval is for a group; or (c) the job does not require education, teaching or experience. This may be done by letter with a copy of the approval notice and the beneficiaries credentials. A consular officer may substitute beneficiaries on approved H-2B group petitions without obtaining INS approval if the qualifications of individual beneficiaries on the group petition will not be or were not considered in according the H classification. Cable, DOS, No. 90-State-096324 (Mar. 26, 1990), reported in 67 Interpreter Releases 475 (Apr. 23, 1990).

   • Transportation home. If H-2B is dismissed before the end of the period for admission the employer must pay "the reasonable costs of return transportation of the alien abroad." 

4. Admission and Extension

   • Admitted for time on labor certificate but no more than
     I year.

   • Extension not more than 12 months and maximum of 3
     years. Must have new labor cert. or notice that
     certification cannot be made. Cannot obtain CIS, EIS or
     readmission if H-2B in U.S. for 3 years in H/L category
     unless s/he has resided and been physically present
     outside U.S. for 6 months immediately prior to
     application. 

   • H-2B is limited to 66,000 visas a year. They are issued
     in order of filing and the limitation is not applicable to
     spouse and children.

   • Can submit multiple beneficiaries on one petition if
     they will be performing the same service, for the same
     period of time in the same location. 

   • Agents as petitioners. Must have U .S. agent to file
     petition in cases where person is self-employed or
     foreign employer is traditionally the employer. 

5. H-2 to Employment Based Preference.

   • Where same employer need to show position is
     different.

   • If present labor certification is approved or preference
     petition is filed INS regulation provides no H-2
     extension will be granted. 

For further information, send your query to Aparna Davé. Your personal information will remain confidential.