American skilled worker visas have been making headlines in recent years, with President Donald Trump adding a $100,000 fee for H-1B applicants, hoping businesses will hire domestically instead. The same cannot be said for the H-2B visa, which has escaped such restrictions. As such, it could still be a great document to bring fresh talent into your tech startup.
The United States Citizen and Immigration Services (USCIS) is only allowed to issue 66,000 H-2B visas annually, split into two 33,000 visa packages across the year. Get help from immigration lawyers and advisors like Total Law to make sure your prospective hire gets one of these places.
Who is Eligible for a H-2B Visa in a Tech Firm?
The H-2B visa is traditionally used for lower skilled work, such as roles in the hospitality industry. However, the primary eligibility requirement is that the role is temporary, meaning that select tech roles could be filled by H-2B workers. There are a number of ways your tech firm could prove the role has this characteristic, as described below:
Firstly, the role could be a one-off position, with work that won’t be repeated. As such, the company should not have previously hired workers for the role, or intend to do so in the future.
Secondly, the role could be in place to fill a peak load need, requiring extra workers to cope with an unusually busy time. An example could be if your firm has just rolled out a new product and needs an extra pair of hands. This role cannot be to fill a regular or recurring need.
Finally, the role can be in place to fill an intermittent need, requiring temporary workers to occasionally work. As with one-off positions, the role cannot previously be conducted by permanent employees.
The role could also be seasonal. However, this type of temporary role is unlikely to be relevant for tech firms.
Documents Needed for a H-2B Visa Application
The H-2B visa has a strict application process that your prospective hire will need to succeed in by showing that the role is temporary. Firstly, you need to submit the following provided by your business to show that the role is eligible:
Firstly, they need a cover letter from yourself using your business’s official letterhead. It needs to include the nature of your business, the locations and mailing addresses used by the business, an explanation of the temporary role and the qualifications your prospective member of staff has to carry out the role.
Next, they will need documentation showing that there is a lack of suitably qualified US citizens to complete the role, and that filling the role is absolutely necessary for the business to avoid irreparable harm. This documentation also needs to show that employment and health and safety laws will be followed.
Other documentation will need to be supplied by the applicant, which includes the following:
- A valid passport and passport style photographs.
- Proof they will return home after the visa expires, such as a return flight ticket.
- A completed non-immigrant application form (Form DS-160).
Males aged 45 or younger will also need to submit Form DS-157.
H-2B Visa Application Process
Once your business and your prospective worker have pulled together the necessary documentation, the application process can begin. The first step shows that the business and role is eligible and the second shows that the prospective hire is eligible.
Begin the application process by applying for a temporary labour certification from the US Department of Labor. This registration can occur up to 120 calendar days before the temporary contract is set to begin. Your business also needs to get a Prevailing Wage Determination (PWD), and file a job order. A PWD is an assessment of the average wage paid to similar workers, which your business will need to exceed or match. You will then need to file Form I-129 with the USCIS alongside the temporary labour certification that you received. This can all be done for multiple temporary workers filling the same type of role.
With this step completed, your worker will then be able to file their H-2B visa application with the US Department of State. They will need to do this at the US embassy or consulate in their home country.
It will typically take 60-120 days for the worker’s H-2B visa application to be processed. If you need a rapid decision, you can pay $1,685 for the I-129 petition to be processed within 15 days, which you can do by filling Form I-907.
If successful, you worker will receive a H-2B visa. This is usually valid for one year, although the exact expiry date will be specified on Form I-129 and the visa itself. Under “extraordinary circumstances” that could not have been foreseeable, your worker can extend the H-2B visa by one year increments up to a maximum stay of three years.
How Can Total Law Help?
The H-2B visa is not designed explicitly for tech firms, usually used by companies that need to temporarily hire low-skilled workers. However, some tech firms may find that the temporary nature of this visa is ideal for getting some extra assistance during particularly busy times.
Going against the usual intent of a visa type can make it harder for your application to be successful. You can improve your chances by working with immigration lawyers like Total Law. Our team can help your prospective worker and you to put together an application that shows why the role in question is relevant to the H-2B visa and how the worker matches the eligibility requirements.
If you need help understanding how your tech business can leverage the H-2B, get in touch with Total Law. You can also visit our website to learn about our services for other visas that could be relevant to your company.
