H-2B Visa

Athlete Visa and Athlete Green Card Options

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For foreign nationals who wish to come to the United States to work or perform as an athlete in sports like football, basketball, hockey, MMA, tennis, golf or in other competitions, there are several different visa and green card options to be found.  Typically, the most difficult part of the process is finding sponsorship but, fortunately for you, I can tell you several ways to get around that issue to perform in the US legally.

Athlete Visa Options

Option 1 – The B1 Visa.  The B1 visa, also known as a business visa, can be used by amateur athletes “competing in an athletic event for which they will receive no payment, other than incidental expenses” and by professional athletes “who receive no salary or payment other than prize money.”  This is clearly not the best option for an athlete who wishes to remain in the US for a longer term as this visa is limited to a six month duration and typically only granted for the exact sporting event period which can be just a couple weeks.  Also, payment is limited to prize money or incidentals.  However, it does not require sponsorship and you do not have to file a petition to USCIS for approval.  The application for a visa can be made at the Embassy and the process is very quick though not always simple to get approved.

Option 2 – The H2B Visa.  The H2B is a seasonal worker visa.  It can be used by athletes to perform in any sport that is seasonal, such as basketball or hockey.  However, for sports that are played year round, this visa type will not be an option.  The H2B visa required a US employer to sponsor the athlete and even more than that, the employer is required test the market for potential employees, run advertisements and promise to pay the “prevailing wage” for the job.  Then the employer must file applications with both the US Department of Labor and USCIS and get approvals from both before a visa application can be made at the Embassy.  Another benefit is that the H2B visa holder can bring his or her spouse or children along with an H4 visa.  The process is slower and cumbersome and you must stay aware of the H2B visa cap which mandates that only 66,000 H2B visas be issued each fiscal year.

Option 3 – The O1 Visa.  The O1 visa is limited to foreign nationals with “extraordinary ability.”  This basically means that this category is reserved for accomplished professional athletes.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  Having a sports agent as a sponsor for your O1 visa is ideal for golf, tennis or other individual sports players that are going to play at multiple different sports events or tournaments.  Unlike the H2B visa, there is no wage requirement and there are no required tests of the labor market.  The employer or agent will file a petition with USCIS and once that is approved, an application for a visa can be made at the Embassy.  A big benefit of this visa type is the athlete can bring a spouse and children along with an O3 visa and you can bring your assistants (multiple) with an O2 visa!

Option 4 – The P1 Visa.  The P1 visa is the only visa type that is specifically designed for athletes.  The athlete does not need to demonstrate extraordinary ability and there is no distinction between amateurs or professionals or individual or groups.  Sponsorship is required but it does not need to be from the employer, it can be from a sports agent.  There is no prevailing wage requirement and no test of the labor market is required.  However, the athlete must be “internationally recognized” and is used to compete at a specific athletic competition.  If you are only competing for prize money, the B1 visa is likely the better option and if you want to remain in the US for a longer period of time then you are likely better off with the H2B visa or O1 visa.

Athlete Green Card Options

Option 1 – PERM Labor Certification + EB3 Green Card.  The PERM labor certification requires a US employer to promise to pay the athlete the prevailing wage and perform a test of the US labor market to see if any minimally qualified US workers are willing and able to take the position, if offered to them.  If no US workers can be located then the green card application can proceed.  The PERM process + the green card process typically takes a couple years if there are no complications or no visa availability issues as listed in the visa bulletin.

Option 2 – EB1 Green Card.  The EB1 requirements mirror the requirements of the O1 visa.  The athlete must be a professional and be significant accomplishments in the sport as to show they are extraordinary.  However, unlike the O1 visa which requires sponsorship by a US employer or agent, the EB1 category has no such requirement.  That means that any foreign athlete can self sponsor and petition for a green card based on their own merits and does not have to rely on anyone else.  When the green card is approved, they are required to continue in their sport but not with any particular employer or agent.  This category is very quick and we have many EB1 cases approved in less than 1 week.

If you would like to explore your athlete visa or athlete green card options, you can contact our office by phone at 305-515-0613, by email at info@messersmithlaw.com or through this contact form.  Our firm has handled thousands of immigration cases and we can evaluate your case to determine the best path for you.

Change of Status from H2B Visa to H1B Visa

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I am curently in USA on h2b viza. My I-94 expires on May 31, 2010.

I would like to change my statul for H1B visa. I have Batchelor degree in economics and master degree in accounting. beside my job for my h2b employeer i am doing an internship as an accountant in one company. the owner of this company would like to help me to change my staus if this is possible. i would like to know if it is posible to change my status in my case. Thak you. Looking forward to hear from you. Best regards.

Your current employer would be able to sponsor your change of status from H2B to H1B provided that he offers you a position that requires the use of your degree(s) such as an accountant, budget/credit analyst, financial analyst, economist or other financial specialist.

Visa for a Part Time Housekeeper

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I have a friend in the Philippines I would like to employ as a part time house keeper and part time work in my business is there a work visa that would allow her to work for me ? Thank You

An H2B visa may be possible for this type of work if you can establish that you have a seasonal, one time need or that the work is otherwise temporary in nature. If you are looking to bring your friend here for a longer duration, you may wish to offer him a different type of employment.

H-2B Visa – Potential Employee Is Not From an Approved Country

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Hello There,

A warm Namaste to you from Nepal. I went through your website but couldn’t see Nepal in between the limited list of countries for H2A program. However, i know some agencies back in Nepal who are doing something in this scheme.

I would like to put my query as a newbie to this scheme whether it could be done for countries like Nepal too or not?

It is for sure that the market for this scheme in Nepal is very huge since its not hidden Nepal is regarded as the land of agriculture too.

Please show me some way in this regard. If it is possible, we can work hand in hand in this project.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs:  Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.  Of these countries, the following were designated for the first time this year:  Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.

H2B Visa Holder is Looking for Change of Status Options

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I’m having a work visa H2B visa right now but my job is going to end soon. I don’t want to leave and I want to stay legal. I don’t have a new job but I want to stay here. What can I do?

Without more details it is impossible to review all of your options but if you would like to remain in the US to visit and travel, you can apply for a tourist visa and you can remain in the US to travel for up to one year.  If you later find a job during that time or would like us to help you find an employer, you can later change back to an appropriate work visa.

H2B Visa Applicant Not on Country List

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I started a new restaurant and, believe it or not, have had serious trouble finding workers. The winter and summer are the major tourist seasons here in Florida and I have been short staffed since November. I know a group of guys from Spain that I would love to bring in to work over the summer and possibly longer. I know the H2B visa is for seasonal work like mine but I notice that Spain isn’t on the H2B country list. I saw from your web site that there is a way around this. Can you help me out? This could make or break me.

You are certainly correct that the H2B visa is the appropriate visa for seasonal workers. You are also correct that Spain is not one of the approved countries for H2B visas. There is an exception and that is if you can show that visa issuance is in the US interest. USCIS looks to four factors to determine the US interest requirement.

  1. Evidence that the beneficiary has been admitted to the United States previously in H2A or H2B status and complied with the terms of his/her status;
  2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
  3. Potential for abuse, fraud, or other harm to the integrity of the H2A or H2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
  4. Other factors that would serve the US interest, if any.

It is not necessary to prove all four factors. “Other factors” stated in factor 4 are evidence that the H2B sponsor or the US industry or government agency would suffer harm without the services of the H2B visa applicant.

Nanny Visa Options

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There are four options for host families to bring a foreign nanny/domestic worker to assist them in their home.

J1 Visa – Au Pair

The easiest and, by far, most popular option is to bring a nanny as an au pair.  The au pair program utilizes the J1 visa and persons wishes to hire an au pair must do so through an au pair program authorized by the US Department of State.  The prospective au pair are preselected by the program sponsor and the host family must choose the au pair from the offered pool.  Costs are typically between $7,500 to $12,500 which are paid to the au pair program and the host family must also pay the au pair expenses which run between $250 to $450 per week.  The au pairs themselves must undergo training and many types of background checks.  In addition, the au pairs must meet the following requirements:

(1) Are between the ages of 18 and 26;

(2) Are a secondary school graduate, or equivalent;

(3) Are proficient in spoken English;

(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;

(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and

(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.

The au pair may be granted a J1 visa for a duration of 12 months which can later be extended if the host family wishes to continue her services.

H2B Visa – Short Term Help

The H2B visa is generally employed by companies with seasonal or intermittent business such as coastal restaurants, theme parks or other tourist spots.  However, the H2B visa can also be used to bring nannies to the US.  Unlike the au pair program which requires the host family to go through an au pair program, the host family can directly petition for the nanny.  The downside is that the host family must be able to show that there are no available US workers for the job and that the work is temporary in nature.  While the visa may have a three year duration, the work period must be less than 12 months each year.  There are no program fees to be paid but the host family must pay the nanny the prevailing wage as determined by the US Labor Department.

B1 Visa – Accompanying US Travelers

US Citizens, permanent residents and foreign nationals coming to the US for temporary nature may bring domestic help with a B1 visa.  The parties must enter a written employment contract guaranteeing payment of the prevailing wage for an eight hour workday and provide any benefits normally required for US domestic workers in the area of employment.  B1 visa are typically valid for 6 months but may be extended.

PERM Labor Certification – A Permanent Solution

The PERM program offers a permanent solution for the host family that has chosen a nanny who they would like to keep permanently.  Similar to the H2B visa, PERM does not require the host family to go through a sponsoring agency, a prevailing wage must be paid and the host family must be able to show that no US workers are available for the position.  However, the work does not need to be temporary in nature and upon approval of the PERM process, the host family may petition for the nanny to obtain residency so she can enter the country.

In order to qualify as a nanny, the applicant must have two years of experience as a nanny and be offered full time employment as a nanny by the host family.  To qualify as a domestic live-in, the applicant must have one year of experience and the host family must show that the employment is a business necessity.

FY 2009 H-2B Cap Reached

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The H-2B Visa cap was met on January 7, 2009 for FY2009.  Since the passage of the Save Our Small Business and Seasonal Businesses Act of 2005, the H-2B filing season was split into two halves.   The purpose of splitting the filing season  is to avoid summer season filers to have an advantage over winter season filers.  The first half for FY2009 began June 2009 and the cap was met on July 29, 2008 and the second half began December 2008 and has now been met as of January 7, 2009.  The filing season for the first half of FY2010 will begin June 2009.

The inability for US businesses for find and hire qualified seasonal workers will undoubtedly harm US business.  To see what you can do to help raise the H-2B cap, please visit this site.

There are few exemptions from the H-2B visa cap and they are:

1.  Fish roe processors, fish roe technicians and supervisors of fish roe processing.

Previously, there was an exemption for H-2B returning workers.  An employer was able to attest that the H-2B was returning for work the next season and the H-2B would be classified as H-2R.  However, this exemption expired Sept 30, 2007 and was not extended.