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H-1B vs H-2B Visa

H-1B vs H-2B Visa

The H-1B and H-2B visa classifications have been among the most popular nonimmigrant work visas for foreign nationals who desire to live and work in the United States. Each of these two visa types has unique benefits as well as specific application requirements that an applicant must meet. Learning about their criteria, differences, and similarities will help you make the right choice and make the most of your stay in the United States.

The H-1B Visa

The H-1B visa category is a nonimmigrant classification for foreign nationals who want to live and work in the U.S. in any of these three fields:

  • Specialty Occupations (H-1B)
    • Specialty workers from Singapore and Chile (H-1B1)
  • DOD Researchers and Development Project Worker (H-1B2)
  • Fashion Model (H-1B3)

Like many temporary work visas, your H-1B visa must be sponsored by a qualified U.S. employer. This means that you must have an offer to work in some capacity in the United States before you can apply.

H-1B General Requirements

The H-1B visa requires an applicant to have at least a bachelor’s degree or its equivalent in the job specialty they have applied for from an accredited institution, an unrestricted license to practice (if applicable), and a considerable degree of experience or training for the specialty job. For an H-1B3, an applicant must be a prominent fashion model with distinguished merit and ability.

For a job to be considered as an H-1B specialty occupation, it must:

  • Require at least a bachelor’s degree or its equivalent as the minimum entry requirement
  • The required degree is common to the industry, or the position is so complex that it can only be performed by a degree holder.

An H-1B2 visa for a DOD cooperative research and development project must meet the following requirements:

  • The project is provided for under a government-to-government agreement managed by the U.S. Department of Defense
  • A minimum of a bachelor’s degree or its equivalent is required to perform the duties.

An H-1B3 fashion model category states that:

  • The services or position must require a fashion model of prominence.
  • As an applicant, you must be a fashion model of extraordinary ability and merit.

H-2B Temporary Non-Agricultural Workers

The H-2B allows employers or agents to bring foreign nationals to the United States to fill temporary nonagricultural jobs. It is a seasonal or one-time job position that is open to both skilled and unskilled workers including entertainers, camp counselors, home attendants for terminally ill patients, ski instructors, and business trainers.

H-2B General Requirements

As it is with every work visa, the H-2B has specified visa requirements for both the petitioning employer and the beneficiary employee.

The employer must establish that:

  • There is a need for the worker’s services on a temporary basis, which could be a one-time occurrence, seasonal need, peak load, or intermittent need
  • The job offer is less than one year period
  • There are no qualified and willing U.S. workers available for the temporary position

The employee must:

  • Have a job offer for the temporary position from a U.S. employer
  • Possess the ability to perform the required tasks
  • Prove that they are willing to return to their home country on or before the expiration date on the visa.

One-Time Occurrence Need

This means the employer has not hired the temporary workers to perform the service in the past, and will likely not need them to perform the service in the future, meaning the offer is just for one-time temporary employment.

Intermittent Need

This means the employer has not employed full-time workers for the services or labor, and will occasionally need temporary workers to carry out the tasks for short periods

Peak Load Need

Peak load means the employer needs temporary workers to support the permanent staff for a period of peak demand. The temporary additions will not become permanent members of the staff.

Seasonal Need

This will require the petitioner to establish that the temporary worker is needed for a service that is traditionally tied to a particular season of the year, which is of a recurring nature.

H-1B and H-2B Visa Process

Both H-1B and H-2B programs have the same visa application process, which is broadly categorized into three steps:

Step 1: Labor Certification Application

The petitioner will commence the process by submitting a labor certification or labor condition application to the Department of Labor (DOL). The purpose is to prove that both the employer and the beneficiary workers meet the eligibility criteria for the visa.

There is a slight difference that you must take note of when filing either an H-1B or H-2B petition. Many employers often confuse the terms. The following is what is applicable to each of these two visas:

H-1B: Labor Condition Application

H-2B: Temporary Labor Certification 

Step 2: I-129, Petition for Nonimmigrant Worker

After fulfilling the DOL requirements, the petitioner will need to file an I-129 with the United States Citizenship and Immigration Services (USCIS). If you are already in the U.S. on a valid visa status, your employer will also need to request a change of status to H-1B or H-2B. Once the petition is approved, your status will be changed and you can continue working in the U.S.

Step 3: Apply for Visa and Admission (For Applicants Outside the U.S.)

If you are outside the United States, you will need to wait for the I-129 filed by your prospective employer to be approved. Once the petition is approved, you can start the process of traveling to the United States by going through the following steps:

  1. Apply for a visa at the U.S. embassy or consulate in your country of residence. This will involve both documentation and an interview.

    At the interview, you must convince the consular officer that you have fulfilled the requirements for your nonimmigrant visa. If the consular officer is convinced, you will be issued a visa packet as your travel permit to the U.S.

  2. Seek admission at the port of entry (POE). Having a visa doesn’t automatically give you entrance into the U.S. You will be screened at the POE by the U.S. Customs and Border Protection officers. If you are approved, you will be granted admission into the U.S. and be able to start working under H-1B or H-2B status.

H-1B vs H-2B Visa Cap

Each of the two visa programs has its own numerical limit or cap, which is the limit on the number of visas that can be issued in a year. Once the number is reached in a given year, other applicants will need to wait for another time or opt for another visa option:

H-1B Cap

The H-1B has a limit of 85,000 annually. Out of this number, 65,000 visas go to the regular applicants, while the remaining 20,000 are reserved for the people who hold a master’s degree or higher from a U.S. institution. There are also 6,800 visas reserved for citizens of Chile and Singapore. This number is deducted from the regular and master’s allocations.

H-2B Cap

The H-2B has a statutory numerical limit of 66,000 visas. This is also broken down into two categories: 33,000 for workers who begin their employment in the first half of the fiscal year (October 1 – March 31) and the remaining 33,000 for those who begin their employment in the second half of the fiscal year (April 1 – September 30).

H-1B vs H-2B Eligibility Criteria

Both visas require an applicant to possess the skill set and qualifications for the position they seek. However, the H-1B requirements are more stringent:

H-1B Eligibility

You must have at least a bachelor’s degree, and the nature of the job must be considered a specialty occupation by the USCIS. And if you are applying as a fashion model, you must be a distinguished professional in the field.

H-2B Eligibility

This seems to qualifications that are easier to obtain and accommodates broader fields. H-2B visa holders can work in locations such as hotels, motels, resorts, cruise ships, construction sites, warehouses, water parks, restaurants and bars, and retail stores. Other H-2B jobs include ticket sales, security, ride operators, janitorial, maintenance, and more.

H-1B vs H-2B Period of Stay

This is the length of stay allowed under each of the two categories.

H-1B: 6 Years

You may be admitted for a period of up to three years as an H-1B nonimmigrant. Your visa may be extended if there is a need to stay longer than the initial period of stay.

However, generally, an H-1B visa cannot go beyond six years, meaning you can usually only extend your visa stay for an additional three years. However, there are situations that allow you to stay beyond the typical six years.

H-2B: 3 Years

An H-2B visa is granted for up to the period of time authorized by the DOL on the temporary labor certification. If there is a need to continue on the job after the expiration, you may be granted an extension in increments of up to 1 year. The maximum period of stay is 3 years.

Green Card Opportunity H-1B vs H-2B

This is the greatest advantage of H-1B over H-2B because it is considered a “dual intent” visa. This means that you can apply for and obtain a green card by adjusting your status from an H-1B nonimmigrant to a permanent resident.

H-1B: Dual Intent

This means that, while you are still on H-1B status, you can continue living and working on a permanent basis through a green card. All you need is to have a U.S. employer who is willing and eligible to sponsor your green card by filing a PERM Labor Certification and I-140 Immigration Petition for Alien Worker on your behalf.

Keep in mind, however, that your current H-1B position may not be suitable for a green card application. Therefore, the employer will need to offer you a job position that qualifies under an employment-based green card category.

H-2B: Dual Intent Not Allowed

The H-2B, on the other hand, is not considered a dual intent, meaning once your visa has expired, you must depart the United States. If you wish to come back to the U.S. as an H-2B nonimmigrant, you may seek readmission after an uninterrupted period of 3 months.

Family Members of H-1B and H-2B Holders

Both the H-1B and H-2B visas allow you to bring your spouse and unmarried children under the age of 21. Your family members will need to apply for an H-4 nonimmigrant visa. They will be given the same period of stay that is granted to you.

Employment for Family Members H-1B vs H-2B

H-1B: Your dependent spouse may later be given a chance to work in the United States the moment you start processing your green card application after arriving. A qualified H-4 spouse will need to request for Employment Authorization by filing an I-765.

H-2B: The H-4 dependent family members of H-2B holders are not eligible to work in the United States.

H-1B vs H-2B Lottery

Due to high demand, the submitted petitions usually outpace the available annual cap for both the H-1B and H-2B options. This high demand has led to a lottery through a computer-generated random selection process. This means, even if you are qualified, there is no guarantee that you will be selected for either of the classifications in the lottery.

However, you can boost your chances by ensuring you apply as early as possible and file your application appropriately. Each of these visas has a specific window for applications. Therefore, it is best to prepare your documents ahead of time and forward it to the correct address once the announcement for submission is made.

How Our Immigration Attorneys Can Help

Each of these two nonimmigrant visas has its own peculiarities and benefits and may be best for you depending on your preference and qualifications. Having an expert’s guidance will help you choose the visa that is most suitable for your unique situation.

At Immi-USA, we have a team of highly experienced H-1B and H-2B attorneys. We will help you choose the category that best suits your eligibility as well as help you prepare your petition and ensure the errors that can cause denial are avoided. You can schedule a consultation with us today by filling out this contact form.