IMMIGRATION LAW: TEMPORARY WORK VISAS (H-1B, H-2A, & H-2B)

March 2001

Introduction

With the unprecedented growth in the U.S. economy, low levels of unemployment, and increased demand for skilled workers, many employers are looking to foreign workers to temporarily perform services and labor. In order to employ foreign workers, employers must first navigate the complicated process of obtaining temporary work visas. The Immigration and Nationality Act provides numerous categories and classifications of nonimmigrant visas for temporary workers. Three visa classifications frequently used by employers are: the H-1B, which applies to persons in "specialty occupations", the H-2A, which applies to temporary or seasonal agricultural workers, and the H-2B, which applies to temporary seasonal nonagricultural workers. The key to each of these visas is their temporary nature and the underlying public policy goals of providing employers access to needed labor without undermining the job opportunities, wages, and working conditions of U.S. workers.

H-1B Visa Requirements

The H1-B is a nonimmigrant visa classification for aliens temporarily coming to perform services in "specialty occupations." To be considered a specialty occupation, the job must require theoretical and practical application of a highly specialized body of knowledge. Additionally, the alien must obtain a state license to practice in the occupation and have a bachelor's or higher degree in the specific specialty, or have experience and a position of expertise in the specialty equivalent to a bachelor's degree. H-1B visas are valid for 3 years and may be renewed for an additional three years, allowing a maximum stay of six years. Although H-1B foreign specialty workers do not have to declare an intent to return to their home country, they cannot stay permanently in the U.S. unless an employer sponsors them for a permanent, employment-based immigrant visa. There is a separate and lengthy approval process for this visa.

Foreign specialty workers' immediate family (spouses and unmarried children under 21 years of age) may accompany them but are not permitted to work unless they obtain a separate work visa. Therefore, the alien must be able to support any family members who accompany him or her during the course of employment in the U.S.

Previously, H-1B visas were numerically capped at 65,000 per year. But, in response to the strong demand for skilled workers to fuel the high-technology sector of the U.S. economy, globalization, and a tight labor market, the cap was increased to 195,000 for fiscal years 2000, 2001, and 2002. Aliens employed at higher education institutions and their affiliated nonprofit entities and aliens employed by nonprofit research organizations or governmental research organizations are exempt from the cap.

In order to hire H-1B workers living outside the U.S, the employer must first submit a labor condition application to the Department of Labor. In the application, the employer attests that it will be paying workers on H-1B visas the prevailing or actual wage paid to Americans in the same job with similar experience. Employers must also provide notice of the hiring and salary level to their employee's collective bargaining representative or post the information at their principal place of business. Additionally, they must be conscious of recruitment requirements, layoff and anti-retaliation protections for U.S. workers. Fines and penalties are imposed for failure to comply with these requirements.

After submitting the labor condition application, the employer must file a nonimmigrant worker petition (I-129) and a filing fee. Several documents must accompany the petition: (1) the certified labor condition application; (2) evidence that the proposed employment qualifies as a specialty occupation; (3) evidence the alien has the required degree; copies of any required license or other official permission to practice the occupation; and (4) a copy of any written contract between the employer and the alien or a summary of the terms of the oral agreement under which the alien will be employed. Each petition may include only one worker.

Work authorization for H-1B foreign specialty workers is limited to employment with the approved employer. Multiple employers require multiple H-1B petitions. Generally, a worker cannot change jobs until the new employer files a new petition. But workers applying for adjustment of status, whose applications have been pending for more than six months, may switch employers or jobs as long as they continue to work in the same or similar occupational classification. If the employee is terminated prior to the end of the period for which he or she was hired, the employer is responsible for the employees return transportation costs.

H-2 Visa Requirements

There are two classifications of H-2 visas, the H-2A and the H-2B. The H-2A classification applies to an alien coming temporarily to engage in temporary or seasonal agricultural employment such as farm work, sod harvesting, tree cutting, and orchard work. This visa provides a means for agricultural employers, who anticipate a shortage of domestic workers, to bring nonimmigrant workers to the U.S. The H-2B classification is for workers who engage in non-agricultural employment, which is seasonal or intermittent, meets a peak-load need, or is a one-time occurrence. Examples of these jobs are landscapers, athletes, and ski instructors and chefs who work at ski resorts for the winter season.

The employer's first step in hiring an H-2A worker is to apply for a temporary labor certification with the Department of Labor. These certificates are designed to assure that the admission of aliens to work in the U.S. on a temporary basis will not adversely affect the job opportunities, wages, or working conditions of U.S. workers. An employer filing an application for H-2A workers must provide numerous benefits to its workers such as, housing, meals, transportation reimbursement, and workers' compensation benefits.

After receiving the labor certification, the employer next files a nonimmigrant-worker petition. A single petition may cover multiple workers if: they will perform the same services, they will work in the same location, they are included on the same labor certification and they come from places that are served by the same US consulate. Because the petition process may be lengthy and growing seasons are limited, there are expedited procedures for approving perishable crop-growers requests for alien agricultural workers.

H-2A workers are admitted for the time specified on the labor certificate, but the time may not exceed one year. Subject to certain requirements, visa extensions are available for periods of 12 months or less with a maximum stay of three years. Unlike most other nonimmigrant employment based categories, the H-2A worker must show he or she has "nonimmigrant intent," that is, the worker has a residence in a foreign country, which he or she does not intend to abandon. This cannot be shown if, for instance, the worker has lived in the U.S. for a long period of time or an application for permanent labor certification has been filed on their behalf. There are no limitations on the number of H-2A visas issued each year.

As with the H-2A visa, employers seeking to hire H-2B workers must apply for a labor certification to demonstrate that U.S. workers are not available and that the wages and working conditions meet regional standards. After receiving a labor certification, the employer files a petition with the INS. The petition must include the temporary labor certification or notice that certification cannot be made, evidence that the worker meets the minimum job requirements, and documentation that the employer's hiring need is temporary. The nature of the job itself is not determinative. The employer must state that the need is either a "one-time occurrence" (workers have not been employed to perform services in the past and will not be needed in the future), a "seasonal need" (the services or labor are traditionally tied to a season of the year by an event or pattern), a "peak-load need" (need to supplement the permanent staff due to a seasonal or short-term demand), or an "intermittent need" (full-time or permanent workers are not employed to fill the need). An employer can submit multiple workers on a single petition if they will be performing the same service for the same period of time in the same location.

Like H-2A workers, H-2B workers are admitted for the time specified on the labor certificate, but may not exceed one year. Subject to certain requirements, visa extensions are available for periods of 12 months or less with a maximum stay of three years. If an H-2B worker is dismissed before the end of the period for admission, the employer must pay for the alien to return to his or her country of residence. Currently, there is an annual cap on the number of H-2B visas issued.

Conclusion

With the growth and globalization of the U.S. economy and the tight labor market, employers in all sectors of the economy have increasingly looked toward immigrants to meet their hiring needs. Temporary work visas serve important purposes, allowing employers to fill temporary labor shortages and bring in highly skilled foreign workers. Typically, they require the employer to demonstrate the aliens' skills and education, the employers' need, and that the foreign workers will not cause a decline in U.S. workers wages and working conditions. Because obtaining temporary work visas requires numerous filings and considerable documentation, it is often beneficial to consult an experienced immigration attorney. Legal counsel can simplify the process for the individual and employer, and enhance the chance that the visa will be approved. An attorney can also assist in the selection of the appropriate visa as well as with extensions and applications to change visa status to permanent residency.

If you need help bringing in essential workers, or with any other work-related immigration issue, please contact our offices at (201) 867-0800.

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