Applying for Temporary Worker Visas

Sometimes an American employer may only need workers for temporary or seasonal work. In these cases, the foreign workers will not be eligible for employment-based visas, but may be eligible for nonimmigrant visas for temporary workers. For more information on the differences between nonimmigrant and immigrant visas, contact an experienced immigration attorney at our firm today.

Department of Labor Certification

Much like the process for securing permanent employment for foreign nationals, employers who wish to hire temporary workers must seek certification from the US Department of Labor (DOL) before they can request approval from the US Citizenship and Immigration Services (USCIS) to hire certain categories of nonimmigrant workers. These categories include:

• H-1B (specialty occupations)
• H-2A (temporary agricultural workers)
• H-2B (skilled and unskilled temporary workers)

As part of the process, employers are required to submit information to the DOL certifying their need to employ foreign workers and their attempts to find US workers to fill the vacancies. Employers also have the burden to show how employing foreign nationals will not displace American workers or negatively impact the wages and working conditions of Americans working in the same occupation.

Employer's Petition to the USCIS

If an employer gains labor certification from the DOL, the next step the employer must complete is to file a Petition for Nonimmigrant Worker (form I-129) with the US Citizenship and Immigration Services office. If the employer's petition is approved, the USCIS will send the employer a Notice of Action form. Workers seeking nonimmigrant visas for temporary work will need the receipt number from this form to complete their visa applications.

It is important for employers to take into account the amount of time it can take to process the USCIS petition. Depending on the type of temporary employment, the foreign national's home country and other factors, processing times can be quite long, so it is best for employers to file the petition as soon as possible. Currently, the petitions may be filed up to six months before the anticipated work start date.

Temporary Worker Visas

If the employer's petition with the USCIS is approved, the next step must be taken by the prospective foreign worker. Approval of the USCIS petition does not guarantee the worker will be able to secure a nonimmigrant visa. Like other nonimmigrant applicants, if the worker currently resides outside of the United States, he or she must file a visa application with his or her local US embassy or consulate. As part of this process, the foreign national should be prepared to submit to an in-person interview with an agent of the US embassy during which he or she will be asked questions about his or her application, the nature of his or her employment in the US and his or her intention to return home once the work is completed. The employer should supply an offer letter or other letter to the foreign worker that explains the nature and scope of the job as well as the expected employment start and end date.

If the visa is approved, the worker may travel to a US port of entry, where a US Department of Homeland Security (DHS) officer will determine whether the worker will be admitted to the US and how long the worker will be allowed to remain in the country.

Changing Status or Extending the Stay of Foreign Workers in the US

If the prospective foreign worker is currently residing in the US with a valid nonimmigrant visa, the employer must file an Application to Extend/Change Nonimmigrant (form I-539) in addition to the Petition for a Nonimmigrant Worker to the USCIS. Unless the worker is ineligible for a change in status or extension of stay in the US, the worker will not need to obtain a new nonimmigrant visa. Once both of these forms are approved, the nonimmigrant worker can begin the new employment.

Conclusion

It is important to complete each step of the application process for temporary workers completely and accurately. Any missteps could lead to increased wait times and possibly denial. Contact our firm today to schedule a consultation with an attorney knowledgeable in temporary worker visas.

Copyright ©2009 FindLaw, a Thomson Business

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

Return to Main