H-2A 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.

Final Rule for H2A Visa Program Issued

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February 11, 2010  The US Department of Labor issued the final rule for the H2A visa program.

The new rule ensures that U.S. workers in the same occupation working for the same employer, regardless of date of hire, receive no less than the same wage as foreign workers; provides more transparency by creating a national electronic job registry where job orders will be posted through 50 percent of the contract period; and protects against worker abuses by prohibiting cost-shifting from the employer to the worker for recruitment fees, visa fees, border crossing fees and other U.S. government mandated fees.

The full press release can be found here and the Federal Register entry can be found here.  Reaction to the final rule by the United Farm Workers union has been mostly positive.

“The United Farm Workers applauds Secretary Solis for restoring protections for imported farm workers that had been in effect since the Reagan administration. This is a great victory for all farm workers,” said Arturo S. Rodriguez, UFW president.