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 H2-B visas are issued to Agricultural Workers. The name suggests that this visa is issued for a temporary period and it is seasonal in nature meaning it is season based.
When there is a shortage of agricultural workers in the U.S. then foreign born workers are hired to do the agricultural work. The employer must assure that the job opportunity for which H-2A certification is being requested is not vacant because the former occupant is on strike or is being locked out in the course of a labor dispute.
The employer needs to file an application with the U.S. Department of Labor ("DOL") stating that there are not sufficient workers, and that the employment of aliens will not adversely affect the wages and working conditions of similarly employed U.S. workers.
An agricultural employer files for the employee, it can be either an Individual agricultural employer or a partnership or a corporation.
Employer has to ensure that he will not pay the prevailing wages to the new employee who will be hired for a temporary period.
The procedure is same when skilled and professional workers come under H1-B.
The employer must agree to engage in independent positive recruitment of U.S. workers, He needs to show that by way of publishing an advertisement in the newspaper or TV or Radio he offered jobs to the locals of the US. State work force Agency which is division of the Department of Labors make sure that there are indeed no workers to do agricultural job and the employer did take honest efforts to look for the local employee.
Recruitment is done though State workforce Agency. And employer has to ensure that he will pay at least prevailing wage rate but not below that to the proposed new employee.
This being a temporary post, the employer has to make arrangements for tools and other supplies required for job along with employee's shelter and other facilities such as cooking facilities, health care facility , transportation if needed to the place of work till his stay in the U.S.
The employer must guarantee to offer each worker employment for at least 3/4 of the workdays in the work contract period and any extensions. If the employer affords less employment, then the employer must pay the amount which the worker would have earned had the worker been employed the guaranteed number of days.
Employer is under obligation to hire U.S. based employee until 50% of the work is done.
Employer is under obligation to keep accurate record of each employee and should provide the same when demanded.
Employers can file the forms by mail or electronically. The application must be submitted at least 60 days before the temporary workers are needed. The DOL must approve it 20 days before the starting work date. If approved, the employer pays a base fee of $100 plus $10 for each position certified, up to a maximum of $1000.
The National Processing Center will review an employer's application promptly. Normally, within seven (7) calendar days after receipt of an application, the National Processing Center will notify the employer in writing of the decision to accept or reject an employer's application. Copies of the notification will be sent to the SWA and to the employer by means normally assuring next day delivery.
Certification will not be issued if the DOL determines that U.S workers have filled all the job openings, or if it finds that the potential H-2A workers have been offered better working conditions that those offered to US workers. Certification will also not be granted if there is a strike or lockout, if the employer has committed a substantial violation of the H-2A program within the previous two years, if the employer fails to demonstrate that H-2A workers will be covered by workers' compensation, or if the employer fails to comply with recruitment requirements. Once the certification is granted, the Employer is eligible to file the H-2A visa petition with the appropriate USCIS Regional Service Center.
The application may be filed for multiple workers, and the workers may be unnamed on the application. The employer must provide the USCIS with their names as they become available.
If the USCIS approved the petition, notification is forwarded to the appropriate consulate where the workers apply for visas.
An H-2A visa is generally valid for 364 days. Extensions of up to one year are possible, with a maximum of three years. Once an alien has spent three years in the US in H-2A status, they must leave for six months before being able to resume H-2A employment. During this time the alien can reenter the US in any status that is not based on the performance of agricultural work.
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