The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary, non-agricultural jobs. Typical industries that benefit from this seasonal boost in employment include, but are not limited to: landscaping, construction, hospitality, summer/winter resorts, amusement parks, water parks, ski resorts, hotels, trucking (for local routes only), and fishing.
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The H-2B visa falls into two time periods each year: jobs with an April 1 start date, or jobs with an October 1 start date. The petitioning employer must show by its data (such as sales, payroll, and overtime records) that its needs for additional, seasonal workers falls within one of these two periods.
The application process consists of the following steps:
File a Prevailing Wage Determination Application with the Department of Labor, in which the DOL tells the employer the minimum salary to offer both the US and foreign workers based on the location of the job and job title. We filed these Prevailing Wage applications in April or May for an October 1 start date; and in October or November for an April 1 start date).
File a Labor Condition Application and Statement of Need (with supporting exhibits) with the Department of Labor (file January 2-4 for an April 1 start date; or July 3-5 for an October start date).
Recruit U.S. workers by posting an ad at the worksite and the State Workforce Agency for 15 business days, and file a Recruitment Report with the Department of Labor. The employer will need to keep detailed records of the recruitment process.
If there are no willing and able U.S. workers for the position, and the Labor Condition Application is certified with the DOL, the employer can file an I-129 petition for each job title and location based on the Metropolitan Statistical Area (MSA), with United States Citizenship and Immigration Service (USCIS). With Premium Processing for an additional fee, USCIS will provide a decision within 15 days.
Once the petition is approved, the applicant will file a DS-160 online with the Department of State, and attend an interview at the consulate in his or her country of citizenship or residence. After the visa is approved, the employer will arrange for transportation from the employee's home country to the work site.
As the process is very competitive, it is crucial that each step is completed on time, so that the employer can move on to the next step once it is approved to do so.
Can Family Join the Worker in the United States?
Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 non-immigrant classification. However, family members are not eligible for employment in the United States while in H-4 status.
Period of Stay
Typically, H-2B workers attend jobs in the US for about 6-9 months, then return home after the authorized period of stay, or work for another employer once the period ends.
Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.
A person who has held H-2B non-immigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B non-immigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.
Who May Qualify for H-2B Classification?
To qualify for H-2B non-immigrant classification, the petitioner must establish that:
There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
The employer’s need is considered temporary if it meets one of the following categories below:
1. One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;
OR
2. Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature.
This is the most common type of need.
Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:
Unpredictable;
Subject to change; or
Considered a vacation period for your permanent employees.
OR
3. Peak load need – A petitioner claiming a peak load need must show that it:
Regularly employs permanent workers to perform the services or labor at the place of employment;
Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
The temporary additions to staff will not become part of the employer's regular operation.
OR
4. Intermittent need – A petitioner claiming an intermittent need must show that it:
Has not employed permanent or full-time workers to perform the services or labor; and
Occasionally or intermittently needs temporary workers to perform services or labor for short periods.
Which Countries Qualify for the H-2B Visa?
H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program.
This list is updated annually, and can be found in the Federal Register notice.
Annual Visa Cap
There is a statutory numerical limit, or "cap," on the total number of non-citizens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30).
Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.
Due to the extreme demand for these visas, USCIS has been operating a lottery system each year to determine which cases have the first chance to submit their applications for each H-2B visa period. Over the last several years, employers submit their LCA and Statement of Need in the first few days of January for an April 1 start date, and are assigned a lottery group of A through G. Applications with an October 1 start date submit these applications during a window from July 3-5. If the cap fills before a petitioner is able to file its petition with USCIS, the employer can consider using some of the applicable Supplemental Visas.
Supplemental Visas
The Department of Labor increased the numerical cap for Fiscal year 2024 (fiscal years begin October 1 each year) to 64,716 additional visas.
Of the 64,716 additional visas, 44,716 are available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years).
The remaining 20,000 visas are set aside for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) who are exempt from the returning worker requirement.
Once the regular cap is filled, employers may file their petitions under one of the two supplemental visa categories (returning workers or country-specific workers), during a specific filing window determined by the Department of Homeland Security (DHS) and the Department of Labor (DOL).
Over the past several years, our clients have filed successful petitions with these supplemental visas after the regular cap was filled.
Are You Ready to Apply?
If you are ready to apply for an H-2B Visa, or to find out if you qualify, get a copy of our free guide here.
You can schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.
This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney
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