The employer must demonstrate that the need for more workers did not happen in the past, and will occur in the future. The employer will have to demonstrate the need for the temporary worker is based on a specific event requiring more workers now.
The employer must demonstrate that the work needed by the employer is tied to a season of the year by a certain event or pattern which occurs every year, such as a summer tourist season, or the winter holidays.
An employer, in this case, needs extra workers to help permanent employees due to seasonal or short-term demand. The employer must demonstrate that the temporary workers will not become permanent employees.
The employer, in this case, needs extra workers occasionally or intermittently for short periods. The employer must demonstrate that he or she did not previously employ workers permanently for those positions.
It is important to note that there are a limited amount of H2B visas available per fiscal year, and that the petitioning employer must pay the foreign employee the prevailing wage the position as determined by the appropriate state agency.
There are only 66,000 H2B visas available every year from, from October 1 to April 30. The visas are divided into two groups, 33,000 each, one for winter and the other for a spring work experience, for the time period October 1 through March 31, and April 1 through September 30. As with any other similar visa, the employer must formulate a job description, and pay the employee the temporary employee the prevailing wage for the type of work to be performed, in the location of the intended employment.
The amount to be paid to a foreign worker, the prevailing wage, must be at least at 100 percent of the prevailing wages paid to U.S. workers employed in the same or similar occupation, who also have the same or similar education, skills and experience possessed by the foreign worker. The prevailing wage is provided, in writing, by state workforce agencies, and is based on information provided by the employer on a form 750A. The workforce agency will use the information provided by the employer and post the position in a job bank for ten consecutive days, and the employer must advertise the job in a local newspaper for three days. Then purpose of posting the job in the agency job bank and newspaper is to ensure that no qualified U.S. workers are being displaced. Once all of the steps required by the workforce agency are complete, the employer may file the H2B petition with USCIS. Roth & Lebamoff will assist clients in obtaining prevailing wage determinations from the appropriate agency for your location, and filing with USCIS.
