H-2 Temporary Worker Visas
LESSER SKILLS AND SHORTAGES
1. What is a H-2 Visa?
The H-2 is an nonimmigrant visa that allows a foreign worker to come to the U.S. to perform agricultural labor or service of a temporary or seasonal nature, or to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in the U.S. An alien applying for a H-2 visa must have a residence in a foreign country which he/she has no intention of abandoning and must come temporarily to the U.S.
2. Temporary agricultural workers: H-2A.
In 1986 Congress enacted a provision that allows agricultural guest workers to supply needed farm labor at wages that enable growers to keep prices down for consumers. But as before, the employer must still obtain from the Labor Department a certification that sufficient American workers cannot be found and that the alien's employer will not depress the wages or working conditions of American workers. For the latter purpose the Labor Department annually publishes "adverse effect wage rates" (AEWR's) that vary from state to state. These are the minimum hourly rates that employers must pay H-2A farmworkers.
The petition must be filed by a U.S. employer or an association of U.S. agricultural producers named as a joint employer on the certification. The petition must be filed with:
- a single valid temporary agricultural labor certification, or, if U.S. workers do not appear at the worksite, a copy of the Department of Labor's denial of a certification and appeal, and evidence that qualified domestic labor is unavailable; and
- copies of evidence that each named alien met the minimum job requirements stated in the certification when it was applied for.
More on the H-2A Visa
3. Other temporary workers: H-2B.
H-2B workers are coming temporarily to engage in non-agricultural employment that is seasonal, intermittent, to meet a peak load need, or for a one-time ocurence. These aliens are initially admitted up to a year. They may receive one-year extensions up to three years. The H-2B visa was created to enable employers to fill jobs for which labor is in short supply. Therefore, the H-2B's must first apply for labor certification. The Labor Dapartment's temporary labor certification does not bind the INS; conversely, the alien may overcome the Labor Department's denial of labor certification by presenting countervailing evidence to the INS.
The petition must be filed by a U.S. employer with either:
- a temporary labor certification from the Department of Labor, or the Governor of Guam if the proposed employment is solely in Guam, indicating that qualified U.S. workers are not available and that employment of the alien will not adversely affect the wages and working conditions of similarly employed U.S. workers, or
- a notice from such authority that such certification cannot be made, along with evidence of the unavailability of U.S. workers and of the prevailing wage rate for the occupation in the U.S., and evidence overcoming each reason why the certification was not granted; and
- copies of evidence, such as employment letters and training certificates, that each named alien met the minimum job requirements stated in the certification when it was applied for.
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