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Filing the H-2B Petition? Read the H-2B Filing Tips First

 

The H-2B visa is one of the most sought after nonimmigrant visa categories. H-2B allows foreign nationals to enter into the U.S. to engage in nonagricultural employment which is seasonal, intermittent, peak load, or a one-time occurrence. Considering the current economy and the toughness in hiring of foreign nationals; employers should take dual care in filing the petition.

 

We understand that delays in the visa processing can often greatly impact a business, and therefore we offer these H-2B filing suggestions with the hope to educate H-2B employers with the most efficient manner to submit the Form I-129 to USCIS.

 

I-129 H-2B Filing Tips

 

Prior to Filing:

 

Before filing, the employer should confirm the following:

1. The job is temporary.
2. Department of Labor has certified that no U.S. workers can be found and the beneficiary working in the United States will not harm U.S. workers.
3. All of the requirements on the ETA-750 or ETA-9142 have been met.

 

Filing Date:

 

Do not file the H-2B petition more than 120 days prior to the date of actual need.

 

Fees and Filing Issues:

 

Here is the chart below for the appropriate fee information:

 

Form	Filing Fee	Additional Information
I-129	$320.00	Multiple beneficiaries are allowed on petitions and there is no extra fee for each beneficiary. Submit check or money order, not cash Made out to U.S. Citizenship & Immigration Services or Department of Homeland Security. Checks/Money orders must be recent and signed. The beneficiary cannot pay the I-129 fee.
Fraud Fee	$150.00	Fraud Fee required for each Petition. Fraud Fee can't be waived. The beneficiary cannot pay the fraud fee.
Premium Processing Fee	$1000.00	Must be filed with Form I-907. The beneficiary cannot pay the premium processing fee. Premium Processing provides you a direct line access (e-mail and phone). 15-day expedited processing Submitted to different address: PREMIUM PROCESSING 30 Houghton St St. Albans, VT. 05479-2399

 

Form I-129 Supplement H:

 

Complete and sign the Form I-129 Supplement H with a revision date of 1/22/09 or later. Failure to do so will result in an RFE.

 

H-2B Eligible Countries:

 

The Secretary of Homeland Security, with concurrence of the Secretary of State, has designated nationals from the following countries as eligible to participate in the H-2B visa program:

Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Chile; Costa Rica; Dominican Republic; El Salvador; Guatemala; Honduras; Indonesia; Israel; Jamaica; Japan; Mexico; Moldova; New Zealand; Peru; Philippines; Poland; Romania; South Africa; South Korea; Turkey; Ukraine; and United Kingdom.

 

Nationals from Other Countries:

 

Nationals from countries other than the above should be filed for on a separate petition with the following evidence:

1. Documentation showing a worker with the required skills is not available from a country currently on the list published in the Federal Register;
2. Evidence that the beneficiary has been admitted to the United States previously in H-2B status;
3. What, if any, is the potential for abuse, fraud, or other harm to the integrity of the H-2B visa program through the potential admission of a beneficiary from a country not currently on the list; and
4. Any other factors you feel should be considered as serving the U.S. interest.

 

Filing the Labor Certification:

1. ETA-750 or ETA-9142 must be certified by the DOL and submitted with petition.
2. Please submit all pages including final determination letter from DOL.
3. Original ETA-750 or ETA-9142 should be submitted.
4. Can submit photocopy of ETA-750 or ETA-9142, but should include a description of where the original is located and provide receipt numbers of the other petitions in which it was used.

 

Substitutions:

 

Substitutions are only available when the petition requested workers applying at a consulate and not all workers applied for a visa.

1. Petitioners seeking substitution of beneficiaries outside the United States must notify consulate by letter.
2. Petitioners seeking substitution of beneficiaries inside the United States must file an amended petition (check Part 2, Item F) with fee.

 

Time Limit:

 

If the beneficiary has been in the United States for several seasons, please indicate how long they have been in United States.

 

If the beneficiary has been in the United States for…	Then need to remain outside the United States for…
Three years	Three months
More than 18 months, but less than three years	60 days
Less than 18 months	45 days

 

Beneficiary Names:

 

Substitutions are only available when the petition requested workers applying at a consulate and not all workers applied for a visa.

1. Alphabetize the names of worker(s).
2. If beneficiary names are listed on the petition, DOB, COC and COB should be included.
3. Double-check the spelling of the names on the petition.
4. If you receive a receipt notice and the name is misspelled, alert USCIS immediately.
5. Names should be listed as they appear on passport.

 

Conclusion: These tips are a compilation of the most common errors and the suggested ways for avoiding processing delays or rejections of filings. Sometimes a petition is denied just because of some small errors. So, if you wish to file an H-2B petition, remember all the filing tips that we discussed in the article, they may maximize the chances of getting your petition approved.

 

If you are an employer who has questions regarding Labor Certification or need assistance with the H-2B filing, contact ExpressH2B. ExpressH2B attorneys would be happy to assist you.