Frequently Asked Questions About H-2 Temporary Work Status

By Scott M. Borene*

1. What is an H-2 visa?

An H-2 visa is a visa that allows a foreign worker to work for a U.S. employer in a job that is temporary or seasonal. There are two types of H-2 visas, one for agricultural workers (H-2A) and one for non-agricultural workers (H-2B).

2. When would an employer use an H-2 visa?

An employer would use an H-2 visa when there are no U.S. workers available to fill the position and the position is not permanent. In other words, the employer’s need for the worker is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. Generally, the H-2 visa is most useful for unskilled positions and other positions that do not require the worker to have a bachelor’s degree. Note: the H-2 cannot be used for doctors. For skilled positions, it is often to the employer’s and the employee’s advantage to use a different category, such as the H-1B visa, or some other work visa.

3. What legal requirement must the employer satisfy to be eligible to use an H-2 work visa?

First, the employer must demonstrate that there is no U.S. citizen or permanent resident worker available to fill the job. The employer does this by conducting recruitment for the position that produces no willing and qualified U.S. workers. The employer also has to show that hiring foreign workers will not adversely affect the wages and working conditions of U.S. workers in similar positions. In addition, the position has to be of a temporary or seasonal nature and the time requested for the visa must be reasonable for the job.

4. What legal requirements must the employee satisfy to be eligible to use an H-2 work visa?

Because the H-2 visa is a non-immigrant category, the employee must not be coming to the U.S. with the intention of staying permanently. In addition, in the case of non-agricultural workers (H-2B), the worker cannot have been in the U.S. already for 3 years in any H or L visa category. If that is the case, then the worker has to reside and physically be present outside the U.S. for at least 6 months before being allowed to get an H-2B visa.

5. How long is H-2 status valid?

The H-2 cannot be valid for longer than one year. However, the actual time will be based on the employer’s request, which must be a reasonable time for the temporary position. The Department of Labor makes the initial determination as to whether the employer’s request is appropriate.

6. How long does it take to obtain approval of H-2 status?

For agricultural workers (H-2A), the employer has to file an application for Labor Certification with the Department of Labor (DOL) at least 45 days before the job starts, but can do so earlier. For non-agricultural workers (H-2B), the Labor Certification application has to be filed between 60 to 120 days before the date the worker is needed. After the DOL approves the application, the employer files a petition with the USCIS to approve bringing the foreign worker to the U.S. in the H-2 category. For both agricultural and non-agricultural workers, it is best to file the Labor Certification Application sooner, rather than later, because the USCIS step can take several weeks to complete.

7. Can an H-2 status be extended?

It is possible to extend an H-2 for up to 12 months at a time, but in no case for longer than a total of 3 years, unless the worker leaves the country for at least 6 months. Also, the employer has to justify the need for an extension despite the fact that the job is of a temporary or seasonal nature.

8. Does an H-2 status automatically turn into a green card?

No. In fact, a worker in the H-2 category is generally not eligible to get a green card on the basis of the H-2 job. However, it is possible for the employer to sponsor the worker for a green card in a different position.

9. How much administrative work by the employer is required?

The employer must review and sign several government forms, and work with the State Workforce Agency for the state in which the job is located to ensure that the job meets the relevant labor and immigration regulations. It is generally most efficient for an employer to designate an administrative staff person who will become the immigration coordinator for the employer.

10. What government agencies are involved?

There are three government agencies involved: (1) the State Workforce Agency for the state where the employment will take place, which oversees the employer’s recruitment for U.S. workers, (2) the U.S. Department of Labor, which processes the Labor Certification Application, and (3) the USCIS, which processes the employer’s petition to employ the temporary worker. In addition, if the employee is not already in the U.S., the employee will have to obtain an H-2 visa at a U.S. consulate abroad.

11. What is the role of the employer in the H-2 work visa process?

The employer must cooperate with the State Workforce Agency in conducting the required recruitment for the job, provide basic information about the H-2 worker’s intended job duties, normal minimum requirements for the position, and the employer’s financial condition. We can quickly appraise the potential viability of an H-2 process with the information typically found on a candidate’s résumé or employment application and the employer’s internal job description. We may ask the employer to complete a simple one-page questionnaire, then review and sign draft forms and documents, which we will submit to the government on the employer’s behalf.

12. What is the role of the immigration lawyer in the H-2 work visa process?

It is natural for the foreign employee or candidate and the employer’s human resources staff to focus on the immediate task of obtaining H-2 authorization as soon as possible. The immigration lawyer’s role is to protect the employing entity and the employee from doing long-term legal damage to themselves, and to facilitate H-2 approval within an acceptable time frame. The lawyer will first screen the terms of employment and the candidate’s immigration history to evaluate the probability of H-2 approval within the proposed time frame. A good immigration lawyer will identify strategic options and assist the employer in choosing the optimal strategy; gather and analyze evidence for suitability; draft forms and supporting letters maximizing the probability of approval and minimizing the risk of collateral damage; prepare the employer for potential government audit of their H-2 program; assist in the required recruitment phase; evaluate potential processing complications and consult with the employer and employee as needed to coordinate visa application and travel plans; and explain legal requirements and procedural matters. The lawyer will submit the case on the employer’s behalf, and follow up with the government as needed until the case is concluded. On an ongoing basis, the immigration lawyer can help plan for employment changes and the additional procedures that will be needed to continue the employment relationship without interruption.

13. What is the role of the employee in the H-2 work visa process?

The foreign employee or candidate must provide accurate information and documentation at the lawyer’s and the government’s request. We generally ask the employee to complete a detailed questionnaire and to gather items from a list of personal documents. The employee must keep the lawyer apprised of any intended changes in employment or travel plans in order that the lawyer can adjust strategies as needed. If the employee is outside the U.S. or needs to travel outside the U.S., the employee should work with the lawyer to complete a visa application form and to prepare for the employee’s interview at an U.S. embassy or consulate abroad.

14. Who is on the employer’s H-2 work visa team?

Typically the H-2 team will include an immigration lawyer and a case manager from the employer’s outside immigration law firm as well as the foreign employee, the employee’s immediate supervisor or manager and an HR staff member. At a minimum the foreign employee and a human resources staff member must be available to assist in preparation of the necessary documents. The employer can designate any staff member with appropriate authority to sign the government forms.

The H-2 petition materials will contain information about the job duties and employer’s minimum education requirements, and basic information about the employer’s number of employees and financial condition. If a human resources or legal department staff member can readily obtain the necessary information, it is most efficient to have the same staff member responsible for all H-2 cases. It is often useful if the employee’s immediate supervisor is available to answer detailed questions about the position. Where a large employer will have multiple H-2 cases over time, an effort should be made to educate at least one executive and one legal department staff member about the basic legal requirements and procedures of the H-2 program. Senior executives who are often involved in oversight of the employer’s immigration compliance responsibilities include Vice President of Human Resources, or Vice President of Administration, COO, or General Counsel.

15. What are the chances of success of a typical H-2 case?

Well-documented H-2 petitions that meet the essential legal requirements will most likely be approved. A careful screening by the immigration lawyer at the outset will often identify potential complications that could reduce the probability of prompt approval. Immigration counsel in collaboration with the employer may be able to suggest ways to prevent or resolve potential complications.

16. Is there a minimum salary requirement?

Yes. The employer has to pay the employee a minimum of the “prevailing” wage paid to U.S. workers employed in that position in the same geographic region. The wage also has to be at least as high as the “adverse effect wage rate,” which is a rate determined for each state.

17. Who usually pays the filing fee?

The employer typically pays the filing fee. In addition, for agricultural workers, the employer pays a certification fee if the Labor Certification Application is approved.

18. Who usually pays the legal expenses?

The employer typically pays the legal expenses.

19. Can the H-2 employee’s spouse and children also get visas?

Yes. An H-2 employee’s spouse and children can get dependant H-4 visas to accompany the employee.

20. Can the H-2’s spouse and children get permission to work in the U.S.?

The H-2’s spouse and children cannot get permission to work in the U.S. on the basis of accompanying the H-2 employee in the H-4 category. However, it may be possible for the spouse or children to obtain work permission independently of the H-2 employee’s status.

21. Can the H-2’s spouse and children get permission to attend school as part-time or fulltime students in the U.S.?

Yes.

Also know as H2.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.

©2018 Borene Law Firm, P. A.    3950 IDS Center, Minneapolis, Minnesota 55402    612.321.0082