I am unable to give a definite answer at this time. The H-2B visa is a US visa program and is not relevant to Kenyan law. 


### Introduction

The H-2B visa is a non-immigrant visa that allows U.S. employers to hire foreign nationals for temporary non-agricultural work. This visa is particularly useful for industries that experience peak load, seasonal, or intermittent demands. The application process for an H-2B visa involves several standard clauses and requirements that must be met by both the employer and the prospective employee. This document will outline these standard clauses and provide a comprehensive understanding of the H-2B visa application process.

### Table of Contents

1. Overview of the H-2B Visa
2. Standard Clauses in the H-2B Visa Application
   1. Temporary Need
   2. Recruitment of U.S. Workers
   3. Labor Certification
   4. Job Order
   5. Wage Requirements
   6. Housing and Transportation
   7. Compliance with U.S. Laws
3. Relevant Case Laws and Legal Precedents
4. Conclusion
5. TLDR

### 1. Overview of the H-2B Visa

The H-2B visa program allows U.S. employers to hire foreign workers to perform temporary non-agricultural services or labor. The visa is typically granted for jobs where U.S. workers are unavailable, and it is often used in industries such as hospitality, construction, and landscaping. The H-2B visa has an annual cap of 66,000 visas, divided into two halves of the fiscal year.

### 2. Standard Clauses in the H-2B Visa Application

#### 2.1 Temporary Need

The employer must demonstrate that the need for the foreign worker is temporary. This can be due to a one-time occurrence, seasonal need, peak load need, or intermittent need. The employer must provide evidence that the job is not permanent and that the need for the worker will end at a predictable time.

- **One-Time Occurrence**: The employer must show that the need for the worker is a one-time event that will not recur.
- **Seasonal Need**: The employer must demonstrate that the job is tied to a season of the year and will recur annually.
- **Peak Load Need**: The employer must show that they need additional workers to meet a temporary increase in demand.
- **Intermittent Need**: The employer must demonstrate that they occasionally need temporary workers to perform services or labor for short periods.

#### 2.2 Recruitment of U.S. Workers

Before filing an H-2B visa application, the employer must make a good faith effort to recruit U.S. workers. This involves advertising the job in local newspapers, on job boards, and through other recruitment channels. The employer must document these efforts and provide evidence that no qualified U.S. workers are available to fill the position.

#### 2.3 Labor Certification

The employer must obtain a temporary labor certification from the U.S. Department of Labor (DOL). This certification verifies that there are not enough U.S. workers who are able, willing, qualified, and available to perform the work, and that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

#### 2.4 Job Order

The employer must submit a job order to the State Workforce Agency (SWA) serving the area of intended employment. The job order must include details about the job, such as the job duties, work hours, wage rate, and any benefits offered. The SWA will review the job order and ensure it meets all regulatory requirements.

#### 2.5 Wage Requirements

The employer must offer a wage that is at least the prevailing wage rate for the occupation in the area of intended employment. The prevailing wage rate is determined by the DOL and ensures that the employment of H-2B workers does not negatively impact the wages of U.S. workers in similar positions.

#### 2.6 Housing and Transportation

If the job requires the worker to live away from their permanent residence, the employer must provide or pay for housing that meets local standards. Additionally, the employer must provide or pay for transportation from the worker's home country to the place of employment and back at the end of the employment period.

#### 2.7 Compliance with U.S. Laws

The employer must comply with all applicable federal, state, and local employment laws, including those related to wages, working conditions, and occupational safety. The employer must also ensure that the H-2B workers are treated fairly and are not subjected to discrimination or exploitation.

### 3. Relevant Case Laws and Legal Precedents

#### Perez v. Perez

In Perez v. Perez, Judge M. Casey Rodgers of the U.S. District Court for the Northern District of Florida temporarily enjoined and vacated a set of H-2B regulations issued in 2008 by the Department of Labor (DOL). This case highlighted the importance of adhering to regulatory requirements and the potential legal challenges that can arise in the H-2B visa process.

- **Parties**: Perez (Plaintiff) vs. Perez (Defendant)
- **Outcome**: The court temporarily enjoined and vacated the 2008 H-2B regulations.
- **Relevance**: This case underscores the necessity for employers to stay updated with current regulations and ensure compliance to avoid legal complications.

#### Recent Court Decisions on H-2B Visa Program

Several court rulings have impacted the H-2B visa program, emphasizing the need for employers to comply with all regulatory requirements. These decisions have addressed issues such as wage rates, recruitment efforts, and the treatment of H-2B workers.

- **Parties**: Various
- **Outcome**: The rulings have led to changes in the H-2B visa regulations and enforcement.
- **Relevance**: These decisions highlight the evolving nature of the H-2B visa program and the importance of legal compliance.

### Conclusion

The H-2B visa application process involves several standard clauses and requirements that must be met by both the employer and the prospective employee. These include demonstrating a temporary need, recruiting U.S. workers, obtaining labor certification, submitting a job order, meeting wage requirements, providing housing and transportation, and complying with U.S. laws. Employers must stay updated with current regulations and ensure compliance to avoid legal complications.

### TLDR

The H-2B visa application process requires employers to demonstrate a temporary need, recruit U.S. workers, obtain labor certification, submit a job order, meet wage requirements, provide housing and transportation, and comply with U.S. laws. Legal compliance is crucial to avoid complications.

### Sources

- [U.S. Department of Labor](https://www.dol.gov/agencies/eta/foreign-labor/programs/h-2b)
- [USCIS](https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers)
- [VisaGuide.World](https://visaguide.world/us-visa/nonimmigrant/employment/h2b/)
- [Justia](https://www.justia.com/immigration/work-visas/h-2b-visas-for-temporary-non-agricultural-workers/)
- [Migration Policy Institute](https://www.migrationpolicy.org/article/recent-court-decisions-put-sharp-spotlight-us-h-2b-temporary-worker-visa-program)

What are the standard clauses for an H-2B temporary non-agricultural worker visa application?

Ask a lawyer: What are the standard clauses for an H-2B temporary non-agricultural worker visa application?

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What are the standard clauses for an H-2B temporary non-agricultural worker visa application?