The raging national debate over the enactment of a so-called "guest worker" program largely ignores the fact that one presently exists in immigration law in the form of the H-2B nonimmigrant visa category. In fact, an employer may use a single H-2B petition to hire multiple temporary workers (even unnamed ones) for the same service, time, period, and location. However, using the H-2B program requires extensive planning on the part of an employer, given both the extensive bureaucratic process in obtaining approval as well as the business realities of needing such workers in a very small window of time.
H-2B visas are nonimmigrant visas available to non-agricultural, temporary workers who fall within four categories:
One-time occurrence – covering true one-time usages not likely to recur or one-time events of short durations; Seasonal need – usages tied to a season of the year by a recurring event; Peak load need – usages tied to supplanting a permanent staff with non-permanent additions during busy periods; or, Intermittent need – usages for short, occasional periods of time for positions the employer has never staffed with permanent workers.
Obtaining H-2Bs is a three-step process. Initially, the employer must get a temporary labor certification from the U.S. Department of Labor (DOL). This application requires placing recruitment for the position, screening candidates to ensure no U.S. workers are available, and demonstrating that the employment of H-2B meets prevailing wage standards. The DOL can (and frequently does) make inquiries to ensure the employer is strictly following the temporary labor certification program's attestation and documentation requirements.
Following temporary labor certification approval, the employer must file Form I-129 to secure approval of a nonimmigrant petition on behalf of the temporary workers with United States Citizenship and Immigration Services (USCIS). USCIS restricts the amount of H-2B workers to 66,000 per year and further limits usage of this cap to 33,000 for each of two separate six-month portions of the fiscal year. In addition, an employer may not file the H-2B petition more than 4 months in advance of the need for the H-2B temporary worker.
Lastly, the worker then presents the approved H-2B petition at a U.S. consulate abroad to receive an H-2B visa. H-2B status, when initially approved, gives the individual one (1) year of authorized employment with the sponsoring employee. The H-2B category also entitles spouses and children of the employee to accompany him or her in H-4 dependent status.
The H-2B worker may receive one-year extensions up to 3 years total; however, the DOL requires a new temporary labor certification for each extension, and USCIS intensely scrutinizes such cases. Also, the H-2B visa category does not recognize "dual intent," so an H-2B worker and any H-4 dependents must intend to return abroad at the end of the temporary employment. Finally, if the employer terminates an H-2B employee's services prior to H-2B status expiration, it must provide or pay the reasonable cost of transportation back to the employee's home country or last country of residence outside the U.S.