A Change for Potential H2B Visa Applicants

 Posted on June 03, 2015 in Immigration

In the U.S., there are visa categories offered to cover almost any possible situation, from permanent residence to visiting for a short time. Somewhere in the middle is the H2B visa, which is used for temporary non-agricultural workers. Illinois plays host to a fair number of H2B holders, boasting one of the highest populations of day and short-term laborers in the country. However, a recent court ruling puts the availability of H2B visas for the near future into flux.

H2B Visa Jobs Matter

H2B visas are granted to those who meet requirements and can fill temporary, non-agricultural, unskilled jobs. Examples of these include chefs, landscapers, seasonal workers on fishing boats, and other hospitality workers. While these jobs may seem inconsequential, they are in fact the backbone of several industries. Problems in the flow of these visas can significantly cripple commerce.

Employers apply for H2B visas to provide to applicants. To succeed, they must show:

• That there are not enough U.S. workers willing to take on the job, and that employing foreign nationals will not adversely affect U.S. workers’ job prospects;

• That the need for the services of foreign nationals is temporary (even if the actual job is not temporary). There are several different situations where a need will be classified as ‘temporary.’
  
  
  • A one-time occurrence: For example, a hotel may need the services of a chef, and their usual chef has family related business that mandates a leave of absence. The employer may hire an H2B worker to fill that void;
  
  
  • Seasonal need;
  
  
  • Peakload need: In other words, extra people to help in a business during a busy season or in a time of unusually high volume; or
  
  
  • Intermittent need: When an employer does not require constant extra help, but will do so at unpredictable times.
  
  
  

While an H2B visa offers few perks, it does allow for the holder’s spouse and unmarried minor children to accompany them, granting them H4 visas. The H2B visa holder’s family may remain in the U.S. for the duration that the H2B is valid.

The Florida Ruling

In March 2015, a Florida federal judge ruled that the 2008 Final Rule, which governed the way in which employers obtained the necessary certifications to employ temporary workers, was invalid, because the Department of Labor had overreached its bounds. (A Final Rule is a Department of Labor release that is published in the Federal Register, which provides insight into the rationale for the rule and guidelines for how to implement it. Without a Final Rule, there is effectively no consensus as to how visas should be granted or denied.) They enjoined the enforcement of all regulations involving the granting of H2B visas, citing the need for new regulations. In other words, all processing of H2B visas was stopped.

Two weeks after the initial ruling, an injunction was handed down, which allowed H2B visas to continue processing until April 15, 2015. However, after that date, no more visas will be processed until a Final Rule is reached. This can cause significant problems both for U.S. employers and for foreign nationals who had planned on having their visas within a certain time period.


Contact an Experienced Professional

If you are in a difficult situation due to the temporary stoppage of H2B processing, having an experienced attorney may help. The dedicated Chicagoland immigration attorneys at Mevorah & Giglio Law Offices will work hard to ensure that your interests are protected. Contact us for a free consultation today.