H-2B Temporary Non-Agricultural Workers

H-2B (Temporary Non-Agricultural Workers) Visa

What is the H-2B visa?

The H-2B visa is a non-immigrant visa that permits U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign workers to the U.S. to fill temporary, non-agricultural jobs.

What are the requirements for an H-2B visa?

As the petitioning employer, you must:

  • Show that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Show that hiring H-2B workers will not lower the wages and working conditions of similarly employed U.S. workers.
  • Show that the need for the H-2B workers’ service is temporary. For a need to be temporary, it must be: a one-time occurrence; a seasonal need; a peak load need; or an intermittent need.
  • Provide a single valid temporary labor certification from the U.S. Department of Labor, or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

What strategic considerations should I keep in mind?

  • The H-2B visa has an annual “cap,” of 66,000 visas per year. Of this number, half are awarded to workers who start working in the first half of the fiscal year (October 1 – March 31) and half are awarded to workers who start working 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.
  • Unused H-2B numbers from one fiscal year do not carry over into the next year.
  • Once the cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the cap.
  • The H-2B program is only available to workers from countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the program.
  • The H-2B visa may be extended for one-year periods, for a maximum stay of three years.
  • As an H-2B worker, your spouse and unmarried children under 21 may seek admission in H-4 classification. Family members may not work in the U.S. while in H-4 status.

The H-2B visa allows employers to bring foreign national workers to the United States to temporarily fill non-agricultural positions. The H-2B visa is also available for entertainers, sports players, and filmmakers. The H-2B visa is used for the following types of positions: seasonal, intermittent, peak load and one-time occurrence positions.

To qualify for H-2B non-immigrant classification, U.S. employers must demonstrate the following:

  • Service or labor needed is temporary.
  • Not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work.
  • Wages and working conditions of the current U.S. workers will not be affected by the hiring of foreign laborers.
How long can I stay in the U.S. on this visa?

H-2B visa holders are allowed to stay in the United States for the period of time authorized on the temporary labor certificate (usually authorized for no longer one (1) year). The H-2B visa may be extended for up to three years. It also requires visa holders to depart and remain outside the United States for three (3) consecutive months before seeking readmission as an H-2B nonimmigrant.

Is there a quota to the number of H2B visas approved?

The statutory limit or “cap,” on the total number of applicants who may be granted an H-2B visa during a fiscal year is 66,000. One-half is available during the first half of the fiscal year (October 1 to March 31) and the other half is available in the second half of the fiscal year (April 1 to September 30). Once the cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

Who is exempt from the H-2B cap?

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally, petitions for the following types of workers are exempt from the H-2B cap:

  • Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
  • From November 28, 2009, until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam.