If you are interested in coming to the United States and working on a seasonal basis, you will need to be familiar with the seasonal worker visa. However the process for obtaining one is rather complex, as seasonal work visas must be facilitated by the employer, on behalf of potential workers. Here, we will review who is eligible for these types of visas, how to attain one, the documents required for filing, and the overall process for attaining one.
What is the Seasonal Worker Visa?
There are currently two different seasonal work visas available. The first is the H-2A, which is for temporary agricultural workers. The second is the H-2B, which is for temporary non-agricultural workers. Both allow employers of different backgrounds (agricultural or otherwise) to petition as foreign nationals to come to the United States to fill temporary work positions. There are eligibility requirements and a specific process that must be followed in order for workers to receive the seasonal worker visa.
Who is Eligible?
Eligibility is similar for both visas, with some slight variations. With both the H-2A and the H-2B, it is the employer who must document the need for temporary labor.
To be eligible for the H-2A visa, you as the employer must be able to verify the following:
- Offer you a job that is seasonal or temporary
- Show that there are no U.S. workers who want or can do the temporary work
- Show that employing temporary workers will have no impact on the wages or working conditions of U.S. employees working in the same type of employment
- Submit one valid temporary labor certification. This could come from the United States Department of Labor with the H-2A petition.
H-2B eligibility is a little more complex. To be eligible for the H-2B visa, the employer must be able to verify the following:
- There are insufficient workers who can or want to do the work
- Employing temporary workers will not negatively impact the conditions or wages of United States workers doing the same work
- The need is for the work is temporary, even if the job itself cannot be called temporary itself. The need of the employer is considered ‘temporary’ if it meets the following criteria:
- For a one-time occurrence—employers must show that they have an employment situation that would otherwise be permanent but a short or temporary event has created a need for a worker who is temporary and will not be repeated in the future.
- For Seasonal Needs–The employer must show the service needed is going to be performed on a seasonal and recurring basis.
- For Peak Load Needs– employers must show that they regularly employ permanent workers and simply need to supplement work temporarily based on the season (acknowledging that said temporary workers will not be needed permanently).
- For Intermittent needs — employers must show that they do not have full-time or permanent workers to do the job and that they sometimes need temporary workers for short time periods.
- Submit a temporary labor certification application. This request is made the United States Department of Labor. Before doing this, you must receive a temporary labor certification for H-2A employees.
- Submit form I-129.
- The workers who would be doing the labor then apply for the visa. After the I-129 has been approved, the workers must do the following:
- Apply for an H-2A visa at a Consulate or U.S. Embassy and seek admission for the United States
- Go straight to seeking admission with the United States Customs and Border Protection.
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You must then submit a single temporary labor certification from the United States Department of Labor.
Documents
The primary document used when trying to attain either the H-2A visa or H-2B visa is the Form I-129. This form is known as The Petition for a Nonimmigrant Worker. This form can also be used when requesting an extension of stay or a change in status. The filing fee for the I-129 is $460.
Form I-129 can be filed for regular processing at the Vermont Service Center, California Service Center, Texas Service Center or Nebraska Service Center. The location is dictated by which nonimmigrant classification is being requested and the location of the petitioner. If the work or training will be performed at various locations, the state of the company’s primary office is used to determine where to file the I-129.
Process
The process for both visas is the same, as follows:
Receiving Assistance
The process for applying for and obtaining a seasonal worker visa, either as an employer or employee can often be confusing. As such, it is advisable to seek out assistance. Pride Immigration is available if you need general assistance with the process or if you simply have additional questions. Contact us today to find out more!
Beeraj Patel, Esq.