It is a common misconception that as long as you have a job offer from a U.S. employer, you can obtain a work visa to enter the U.S. to pursue that job. In reality, the U.S. immigration system makes many distinctions that turn on the nature of the job, including whether the work performed can be categorized as “professional” work, “skilled” work, or “unskilled” work. Depending on what category your job falls into, the pathways open to you will differ.
Here are several strategies you can consider if you seek to enter the U.S. to perform “unskilled” labor that requires less than 2 years of training or experience, for example, construction laborers, retail salesperson, truck drivers, bartenders, etc.
Non-immigrant pathway – H2B Visa (non-agricultural, seasonal workers)
One of the most popular non-immigrant work visas is the H-1B Visa, which gives a foreign national the opportunity to enter the U.S. to work in a permanent, full-time position for up to 6 years. However, this visa is only available for “specialty occupations,” which involves theoretical and practical application of a body of “highly specialized knowledge” and which normally require a bachelor’s degree or above. Therefore, many jobs, such as construction laborers, retail salesperson, truck drivers, bartender, etc., will not be eligible to take advantage of this visa.
The H-2B visa, on the other hand, does not distinguish between skilled, unskilled, or professional jobs. This is available for all kinds of jobs.
However, an important caveat is that the H-2B visa is only available to fill temporary or seasonal needs of the employer, and usually applies to temporary assignments that last less than one year.
In fact, the employer must show one of the following:
- One-time need – a temporary project of short duration that has not been filled by a worker before, and will not require any work in the future.
- Seasonal need – the service or labor involved is traditionally tied to a season of the year or occurs in a seasonal pattern, such as a ski range or amusement park.
- Peak-load need – an employer seeks to add temporary supplementary workers to its regular staff due to a seasonal or short-term demand, and they will not become part of the regular workforce.
- Intermittent need – the employer does not employ regular/full time workers to perform the job at all, and only occasionally employs temporary workers to perform services for short periods.
Even though the H-2B visa can be extended for the duration of the employer’s temporary need, it cannot exceed 3 years total. Once the maximum 3 years had been reached, the foreign worker needs to leave the U.S. and live in a foreign country for 6 consecutive months before applying for another H-2B.
It is also worth noting that an annual cap of 66,000 exists, first-come first-serve, for H-2B visa applications. The visa is granted in two batches, once in January and once during June, for employment either beginning between April 1 and September 30, or October 1 to March 31 the following year. The employer must also obtain a labor certification that there are no qualified U.S. workers to fill the positions. This can be a difficult process to navigate, so make sure that you seek the advice of an experienced immigration lawyer to guide you through this process.
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