It’s that time of the week again. A brand-new video, addressing a very important topic. In this video, attorney Jacob Sapochnick breaks down all the visa options available to individuals who wish to work in the United States for a short-term period of 3 to 6 months.
Did You Know? In order to work in the United States, you must apply for the required visa type that allows your temporary employment. You cannot seek employment while on a visitor visa such as a B1/B2 or Electronic System for Travel Authorization (ESTA) under the Visa Waiver Program.
Want to know more? Just keep on watching.
First, it is important to understand that to work in the United States on a temporary basis, you must apply for the required visa. Foreign nationals cannot enter the United States as visitors with the intention to work in the United States, whether that is on a B1/B2 tourist visa or the Visa Waiver Program. If immigration suspects that you are working without authorization on a visitor visa, you may be barred from re-entering in the future.
Due to the serious consequences that can result from unauthorized employment, it is important to understand which visa types will allow you to work in the United States.
Many nonimmigrant visas allow you to work in the United States for a long duration. One such visa is the H-1B visa program for individuals who will work in a specialty occupation. If selected in the annual lottery, the H-1B visa is valid for 3 years and can be renewed one additional time for a total work period of 6 years. Thereafter H-1B visa applicants can apply for permanent residence based on employment-sponsorship.
Separately, there are several nonimmigrant visa types that will allow you to work in the United States for a short duration.
The H-2B Visa for Non-Agricultural Workers—up to 10 months
The most common short-term visa is known as the H-2B visa for temporary nonagricultural workers. The most common industries that utilize this visa are the construction, hospitality, resort industry, and sometimes even technology companies.
This visa type allows U.S. employers to temporarily hire nonimmigrants for the purpose of nonagricultural labor or services in the United States.
To qualify, the employment must be temporary such as a one-time occurrence, seasonal need, peakload need or intermittent need (each is defined in further detail down below). The most common type of need is a “seasonal” need. Once one of these conditions has been proven the employer must file a labor certification with the Department of Labor.
The U.S. employer must attest that they will offer a wage that equals or exceeds the highest of the prevailing wage, for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. Once the labor certification is approved, the U.S. employer can file the H-2B petition on behalf of the foreign worker with the United States Citizenship and Immigration Services (USCIS). One of the major benefits for U.S. employers that can prove that they have a seasonal need, is that they can file a blanket petition to request employment for multiple foreign nationals, instead of having to petition for each worker individually. Typically, the maximum time requested on an H-2B is a 10-month period.
How do you define “temporary need?”
The U.S. employer must demonstrate that they have a “temporary need” for foreign workers based on at least one of the following: a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. Each is defined in further detail below.
- One-time occurrence: A “one-time occurrence” can be established if:
- The U.S. employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform this in the future; or
- The U.S. employer has an employment situation that is otherwise permanent, but a temporary event of short duration has created a need for temporary workers.
- Seasonal need: A “seasonal need” is one that is “traditionally tied to a season of the year by an event or pattern and is of a recurring nature.” The employment is not seasonal if the period during which the services or labor is not needed is unpredictable or subject to change or is considered a vacation period for the petitioner’s permanent employees.”
- Peakload need: To establish a peakload need, the U.S. employer must “establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation.”A peakload need must be of a limited duration.
- Intermittent need: This is shown when the U.S. employer has not employed permanent or full-time workers to perform the service or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.”
The H-2A Temporary Agricultural Workers—6 months or less
The second visa type that allows U.S. employers to petition for workers on a short-term basis is the H-2A visa for temporary agricultural workers. The H-2A visa is designed to help U.S. employers fill temporary agricultural jobs.
To qualify for this visa type, the U.S. employer must:
- Offer a job that is of a temporary or seasonal nature (temporary could be 3-months, 6-months, 10-months depending on the need)
- Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers by going through a recruitment process with the U.S. Department of Labor
- The U.S. employer must submit a valid temporary labor certification from the U.S. Department of Labor with the H-2A petition.
After the temporary need has concluded, the worker can return to their home country, and the U.S. employer can file the H-2A petition again when the need arises for the worker up to 3 times.
J-1 Cultural Exchange Visa
The J-1 visa is a non-immigrant visa type designed for exchange visitors who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
J-1 nonimmigrants are sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange of persons, knowledge, and skills, in the fields of education, arts, and science.
Common examples of qualifying exchange visitors include:
- Professors or scholars
- Research assistants
- Au Pairs
- Camp counselors
Most J-1 visa applicants participate in a 3-month travel program during the summertime, to engage in short-term temporary employment authorized by the U.S. Department of State. Restaurants, ski resorts, hospitality, and service businesses typically participate as sponsors in the J-1 cultural exchange program.
J-1 Visa for Interns
The J-1 visa program also allows certain foreign nationals to work in the United States for up to 1 year as part of an internship program. This includes foreign college and university students or recent college graduates so that students can gain exposure to U.S. culture and receive hands-on experience in U.S. business practices in their chosen occupational field.
To qualify, interns must be:
- Currently enrolled in and pursuing studies at a foreign degree- or certificate-granting post-secondary academic institution outside the United States; or
- Have graduated from such an institution no more than 12 months prior to their exchange visitor program start date.
The bottom line
In summary, there are a variety of visa types that allow for temporary employment of a short duration. Most categories will require the support of a U.S. employer that will file the petition on the foreign national’s behalf. The J-1 visa program is an exception and requires support from a designated J-1 visa sponsor approved by the U.S. Department of State. Visa options of longer duration are also available. To learn more about those visas, please visit our website.
Questions? If you would like to schedule a consultation, please text 619-483-4549 or call 619-819-9204.
- The H-2A Temporary Agricultural Workers
- The H-2B Temporary Non-Agricultural Workers
- J-1 Visa Exchange Visitors
- J-1 Visa Interns
- More Visa Options
- DOS YouTube Channel
- DOS Visa Services Operating Status Update
- Success stories
- Youtube channel
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