Nannies may enter the United States under an H-2B visa to perform temporary work. This H-2B visa allows a foreign worker to do nonagricultural work or services on a temporary basis.
To petition a foreign worker for H-2B visa, the petitioner must apply for a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.
The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time. The temporary need for a nanny, for example, may include proof that the child will be going to nursery school in one year or that either parent has a definite plan to stop working at a certain time.
When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.
The temporary nature of the employer’s need for the services for an H-2B petition shall be a one-time occurrence, seasonal, peak load or intermittent need. A U.S. employer may file an H-2B petition, based on his need, for both unskilled workers such as kitchen helpers, construction workers, dining room attendants and landscape laborers as well as skilled workers like computer programmers, production managers, trainers and chefs.
The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.
The Philippines as well as 62 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2014. An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.
An H-2B petition for a beneficiary already in the U.S. must provide for the name of the beneficiary. The beneficiary must also apply for change of status on Form I-539.
When an H-2B petition has been approved, both name and unnamed beneficiaries may be substituted so long as the initial beneficiaries have not been admitted in the U.S. Substitute beneficiaries may not exceed the number of beneficiaries in the approved labor certification.
Substitution is no longer allowed where the beneficiary is already in the U.S. A new petition with an approved labor certification must be filed.
There is a cap of 66,000 visas per year. Accompanying family members of H-2B visa holders who are granted H-4 status as well as extension of stays for H-2B visa holders do not count towards the cap.