Immigration Corner: I want to work in the US again
Dear Mrs Walker-Huntington,
I am in need of your assistance in a case where I had been denied a H2B visa in 2009 and 2013. I had worked in the United States (US) on the H2B programme since 2001. However, in 2007 my living and working conditions became unsanitary and unbearable. I made a complaint to my
manager, but nothing changed. I was then granted permission to leave, and as such, I went elsewhere to work.
This caused a problem. I did not stay beyond the time stated on my visa. While back at home, I applied for the programme for the next year and I was denied the visa on the grounds that I left my workplace without permission in 2009. I then sought a letter from the manager to prove my innocence. With this as proof, I reapplied in 2013 and was denied again. At that interview, I learnt that I should have left the country 10 days after leaving my original workplace. I came across an article of yours in The Gleaner. I earnestly seek your assistance as I would love to be granted the opportunity to work overseas again. It would give me the push to better myself as well as my family.
An H2B visa is a non-immigrant visa that is issued for temporary/seasonal foreign workers to work in the US. The employer who petitions for an H2B worker has to first receive approval from the US Department of Labor (USDOL) proving to them among other things that there are no US workers who can do the jobs that the foreign worker is coming to the US to perform, and that the foreign worker is going to be paid the prevailing wage for the job classification.
If the DOL approves the petition, the employer now has to petition the US Department of Homeland Security (DHS) for the H2B visa. The process with both DOL and DHS is lengthy, complicated and expensive for the employer. There are unfortunately numerous cases of fraud within the H2B programmes at every level, and as such, all applications undergo strict scrutiny.
Once an H2B petition is approved, the foreign workers have to qualify at the US embassy for the actual visa to travel to the US. During the individual interview at the US embassy, the consular officer can approve or deny the visa based on many of the similar standards used for all non-immigrant visas, e.g., if they think the applicant will return home after the contract/visa period is over.
If the H2B visa is issued to the foreign worker, that person must work for the company named on the visa. If the worker leaves the job they were authorised to undertake, they must leave the US and return home within 10 days.
In your circumstances, you left your employment and remained in the US and worked for someone else. The original employer is compelled to notify DHS that you left their employ and that fact goes in the records and is used against you in future applications - not only for H2B, but for any non-immigrant visa.
It is unfortunate that you were not properly advised of this fact when you accepted the employment through whatever means you became aware of the position. At this point, it is not going to be possible for you to obtain a non-immigrant visa unless you were granted a waiver by the US government.
- Dahlia A. Walker-Huntington is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and personal injury law in Florida. She is a mediator, arbitrator and special magistrate in Broward County, Florida; and an adjunct professor at Miami Dade College's School of Justice. Email email@example.com.