8 CFR § 214.2: Petitions for Temporary Nonimmigrant Employees
This is a visa given to a nonagricultural temporary nonimmigrant worker who is coming to the US to do temporary work without displacing qualified United States workers available to the work. Beneficiary must be from countries pre-approved by the US government:
- Effective Jan. 18, 2012, Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico,
Moldova, Montenegro, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.
A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.
Temporary work falls into 4 categories for H-2B purposes:
- One-Time Occurrence where a temporary event of short duration has created the need for a temporary worker.
- Seasonal need where the services or labor is traditionally tied to a season of the year by an event or pattern and is of a recurring nature.
- Peakload need where petitioner regularly employs permanent workers it needs to supplement its permanent staff on a temporary basis due to a seasonal or short-term demand that will not become permanent.
- Intermittently needs where the petitioner with no permanent employees only uses temporary workers to perform services or labor for short periods.
Who can File and What to File
Only a US Employer or US Agent on behalf of a foreign Employer can file Form I-129 and I-129H. The petitioner has tol apply for a temporary labor certification with the Secretary of Labor
Required Initial Evidence
- Labor certification. An approved temporary labor certification from USDOL
- Alien’s qualifications. documentation that the alien qualifies for the job offer as specified in the application for such temporary labor certification.
- Statement of need. A statement describing in detail the temporary situation or conditions which make it necessary to bring the alien to the United States and whether the need is a one-time occurrence, seasonal, peakload, or intermittent. If the need is seasonal, peakload, or intermittent, the statement shall indicate whether the situation or conditions are expected to be recurrent; or
- Liability for transportation costs. The employer will be liable for the reasonable costs of return transportation of the alien abroad
Traded professional H–2B athletes.
In the case of a professional H–2B athlete who is traded from one organization to another organization, the new organization is expected to file a new Form I–129 for H–2B nonimmigrant classification within 30 days.
Substitution of beneficiaries is allowed in certain cases and only if the employer can demonstrate that the total number of beneficiaries will not exceed the number of beneficiaries certified in the original temporary labor certification. This can be accomplished by a simple letter to the appropriate authorities or by filing an amendment.