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The H-2B visa category is used by U.S. employers to employ skilled or unskilled
foreign nationals in nonagricultural positions for which the employer has a temporary
need and for which qualified U.S. workers are unavailable. The company must intend
to employ the foreign nationals for a temporary period and the employer's need
for the skills possessed by the foreign nationals must also be temporary. In addition,
the employer must seek a "labor certification" from the U.S. Department
of Labor (DOL) certifying that:
- The foreign national is not displacing a qualified unemployed U.S. worker
in the region of proposed employment.
- The proposed employment does not adversely affect the working conditions of
U.S. workers who are similarly employed.
The temporariness of the employer's need for the alien's skills, and not just
the temporariness of the employer's need for the particular alien, is the crucial
element of the H-2B category. This element differentiates it from the H-1 category,
in which the employer's need for someone with the alien's skills can be permanent,
even though the employer intends to hire the alien temporarily.
Duration of Stay
The initial period of stay granted to the H-2B alien must be reasonable
in terms of the duties to be performed and cannot extend beyond an initial period
of one year. Extensions of stay in increments of one year are possible, but the
alien employee cannot be continuously employed in the U.S. for more than three
years.
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