H-2B Visas

Temporary work for H-2B refers to the petitioner’s need for workers. The H-2B employer must need workers only for a limited period not to exceed 1 year, or in the case of a one-time event for up to 3 years. The petitioner’s need for workers must be 1) a one-time occurrence, 2) a seasonal need, 3) a peak load need, or 4) an intermittent need. The need for workers may be recurrent, as long as each period of need for workers is temporary.

Seasonal work must be tied to season of the year by an event or pattern and must be of a recurring nature. For example, landscapers, housekeepers, ski resort and water park attendants, Christmas décor workers may be needed only seasonally and not year-round. If workers are needed year-round, the work is not seasonal. The work is seasonal only when there is a period of time when the employer does not need any workers because the business is off season and closed.   

Peakload work (cannot be used by contractors) must be tied to a seasonal or short-term demand to supplement the employer’s permanent workers on a temporary basis as long as the temporary additions to staff will not become part of the employer’s regular operation. For example, if an employer has a large short-term contract to fulfill it will not be able to fulfill with the help of its permanent workers only, or an employer needs workers due to a hurricane recover efforts or to replace staff taking vacation. Likewise, a hotel may be employing housekeepers permanently all year round, however only during certain seasons/months, needs more housekeepers to meet the increased occupancy demand.

One-Time Occurrence work need can be established if the employer has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future, or 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.

For example, a recent Thai restaurant expansion may increase its food sales (temporary event of short duration), requiring more experienced cooks/chefs. Given the lack of authentic expertise in Thai cuisine in the U.S., the restaurant needs to bring in a chef/trainer to recruit and train a new group of chefs.

Intermittent work (cannot be used by contractors) can be established if the employer has not employed permanent or full-time workers but occasionally or intermittently need temporary workers for short periods.

Theoretically speaking, there is no restriction on what occupation can qualify for H-2B. Practically speaking, the occupations with the most H-2B labor certification are in the area of construction, hospitality, landscaping, and restaurants.

Overall, the spectrum of occupations that qualified for the H-2B program is broad: construction laborers and helpers, cleanup workers, landscaper laborers, maintenance technicians, installation, maintenance, and repair workers, maids and housekeepers, dining room attendants, waiters, food preparers, cooks, dishwashers, kitchen staff, events operation managers, stable attendants, cable network installers, nannies, teachers, snow removal workers, stewards, amusement and recreation attendants, industrial truck and tractors operators, forestry workers, holiday decorators, shop helpers, carnival workers, machine mechanic, structural iron and steel workers, production workers, semi truck drivers, spa attendants, electric helper, plaster finisher, carpenters, tree trimmers and pruners, care home specialist managers, bellhops, drivers, game meat processor, warehouse operator, etc.

Initially, an H-2B worker can stay in the U.S. for the validity period of the approved H-2B petition (usually up to 9 months), plus 10 days before and 10 days after the validity period. However, the U.S. petitioner may file a request for an extension of the petition and the worker’s stay in the U.S. for the maximum continuous period of stay in the U.S. not to exceed 3 years. After the 3-year period, the H-2B worker must leave the U.S. for 3 months before seeking another extension, change of status, or another H-2B visa.

The 3-year limitation on the maximum stay in the U.S. does not apply to H-2B workers who did not reside continuously in the U.S. and whose employment was seasonal or intermittent or was for an aggregate of 6 months or less per year. Also, the accrual of the 3-year limit can be interrupted if the H-2B worker leaves the U.S. for at least 45 days after staying in the U.S. for 18 months or less, or at least 2 months after a stay in the U.S. of over 18 months.

The H-2B program is a three-step process. First, the U.S. employer must obtain a favorable temporary labor certification from the Department of Labor confirming that the qualified workers in the U.S. are not available, and the employment will not adversely affect the wages and working conditions of similarly employed U.S. workers. Second, the U.S. employer must file a petition for foreign workers with USCIS. Finally, once the petition is approved, the foreign workers must apply for an H-2B visa to come to the U.S.  

The total number of foreign workers who can obtain H-2B visas is limited to 66,000 per fiscal year. Half of the visa cap (33,000) can be issued for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and the other half for workers who begin employment in the second half of the fiscal year (April 1 – September 30). 

Applications must be submitted no more than 90 days in advance of the proposed start date. Employers who wish to hire workers starting April 1 may submit their applications starting on January 1. Employers who wish to hire workers starting October 1 may submit their applications starting on July 1.

The new solution is a lottery among all applications that (i) were received within the first three days of the filing period, and (ii) propose for employment to start on the earliest permissible start date of work (April 1). 

H-2B workers already in the U.S. who wish to extend their stay, change employers, or change the terms and conditions of employment are not subject to the cap. Also, H-2B workers previously counted against the cap in the same fiscal year are not subject to the cap. Spouses and children of H-2B workers classified as H-4 nonimmigrants are also not counted against the cap. Finally, H-2B petitions for fish roe processors, fish roe technicians, and supervisors of fish roe processing are exempted from the cap.

H-2B applications are selected and processed in stages. A random computer-generated selection process is used to establish an order in which the H-2B applications will be processed if the number of workers requested exceeds the H-2B annual visa cap.

First, a random selection is performed from the applications received during the initial three calendar day filing period requesting workers with the earliest starting day (October 1 or April 1). The H-2B applications may not be filed earlier than 90 days from the start date of employment. So, the initial 3-day filing period for the first half of the fiscal year is July 3-5 and for the second half is January 2-4 (in a leap year) and January 1-3 (in a non-leap year).

These applications are randomly selected and placed in assignment groups A, B, C. The Assignment Group A will contain enough H-2B applications to meet the numerical cap and those will be the first round of applications to be processed. Once all of the Group A applications are approved or denied, the next round of applications to be processed will be from Group B, and finally from Group C. However, applications in Group C often never make it to processing since the cap is reached during the processing of applications from Group B.

If the unlikely event that the numerical visa cap is not reached after Groups A, B, and C are processed, the next round of processing will include applications received during the initial three-day filing period requesting the employment start date later than the earliest starting date and applications received outside of the three-day filing period requesting the earliest employment start date. Similarly, these applications will be randomly selected into more groups based on the application filing date and the starting date of employment.

A U.S. employer, a U.S. agent, or a foreign employer filing through a U.S. agent may petition for H-2B workers. The agent may petition in cases involving workers who are traditionally self-employed or who use agents to arrange short-term employment on their behalf with multiple employers, or when a foreign employer authorizes the agent to act on its behalf. The agent may be the action employer, the representative of both the worker and the employer, or a person or entity acting on behalf of the employer.

U.S. employer-petitioners, agents, or recruiters of H-2B workers may not collect a job placement fee or other compensation (direct or indirect) from foreign workers as a condition of H-2B employment, other than the cost of transportation to the employment and the required passport, visa, or inspection fees.
If USCIS determines that an H-2B worker has been charged or will be charged a job placement fee as a condition of H-2B employment, the H-2B petition will be denied or revoked. If an H-2B worker is in the U.S. at the time of revocation of the petition, the petitioner will be required to pay for the reasonable cost of return transportation for the worker, unless the worker extends the stay based on a new employment. Also, the employer or the agent will be required to reimburse all workers in full in the amount of the collected fee as a condition of the approval of any subsequent petitions filed within one year of denial or revocation.

Most of H-2B workers come from Mexico, Jamaica, Guatemala, the Philippines, and the U.K. However, there are currently 89 counties whose nationals are eligible for H-2B visas. Every year, the Department of Homeland Security announces a list of eligible countries for the next 12 months.

The November 8, 2024 designation may be found here: https://www.federalregister.gov/documents/2024/11/08/2024-25790/identification-of-foreign-countries-whose-nationals-are-eligible-to-participate-in-the-h-2a-and-h-2b

An employer may petition for a worker from a country that is not eligible for H-2B if the employer can demonstrate that 1) a worker with the required skills is not available from eligible counties, 2) the worker has previously been admitted to the U.S. on H-2B, 3) there is no potential for abuse, fraud, or other harm for the H-2B program by bringing a worker from a noneligible country, and 4) any other factors that may serve the U.S. interest in bringing workers from a noneligible country.

The approval of the H-2B petition does not guarantee that a worker will get a visa. An approved H-2B Petition (Form I-129, Petition for Nonimmigrant Worker) is prima facie evidence that the requirements for H classification have been met.
The worker must still prove the eligibility for the visa.

Since the H-2B visa is a nonimmigrant visa, the worker must prove a nonimmigrant intent – intent to return to their home country after their temporary stay in the U.S. The worker must also be admissible to the U.S.

Finally, the worker must prove his/her eligibility for the H classification – the worker must possess the required skills for the job. For example, if the petition was for workers with certain education, training, and experience, or other special requirements, each worker must prove his/her qualifications for the job.

The most common reasons for denial of the H-2B application are 1) failure to establish the job opportunity as temporary in nature and 2) failure to establish temporary need for the number of workers requested and 3) failure to prove that the employer’s need and the need of each of its clients to whom the employer has agreed to provide workers is temporary when the employer meets the definition of a job contractor.

In support of the H-2B application, the employer must provide an explanation regarding how its request fits within one of the regulatory standards of temporary need (seasonal, peakload, intermittent, one-time occurrence).

The H-2B employer must also properly justify its temporary need explanation through supporting documentation. If the employer claims peakload need but fails to demonstrate that its permanent staff worked more hours during the peak season compared to the off-season, the temporary labor certification may be denied.

Similarly, the application may be denied if the employer is claiming temporary seasonal or peakload need, but the records show that the employer maintained temporary workers in the requested positions year-round.

The employer may provide employment records over a period of time showing the need for the work to be performed is tied to a season(s) of the year and will recur next year on the same cycle.

The employer may provide signed work contracts, letters of intent from clients, monthly invoices from the previous calendar year(s) clearly showing work will be performed for each month during the requested period of need as proof that the work is tied to a season and will reoccur.

The employer may provide summarized monthly payroll reports for a minimum of two previous calendar years that identify, for each month and separately for full-time permanent and temporary employment in the requested occupation, the total number of workers or staff employed, total hours worked, and total earnings received.

To support the peakload need for workers, the employer must demonstrate that it regularly experiences an increase in business during certain months and a significant downturn in business operations during the rest of the year. In other words, the documentation must demonstrate the difference in business operations (sales or accounts) between its peak and non-peak months.

To determine whether or not the employer needs the regulatory requirements for the peakload need, the employer must first establish the nature of its regular operation. The employer may provide a schedule of operations throughout the year to demonstrate the increased activity during the peakload months.

The employer may provide proof of a new upcoming contract, payroll records, and seasonality sales trends showing substantially increased revenues in peakload period thereby demonstrating the need for more temporary workers than in the off-season.

The employer may provide the summarized monthly gross sales reports demonstrating growth during a certain period of time, such as an increased number of sales, accounts or contracts during the peakload months.

The employer may use its payroll records to demonstrate that during the peakload months, its permanent workers maintained or increased their work hours. The summarized monthly payroll reports must be for a minimum of one previous calendar year and they must identify for each month and separately for full-time permanent and temporary employment in the requested occupation, the total number of workers or staff employed, total hours worked, and total earnings received.

In the event that the employer is a new business, without an established business history and activities, or otherwise does not have the specific information and documents to support its peakload need, the employer must submit any other evidence and documentation relating to the employer’s current business activities and the trade industry that similarly serves to justify the dates of need being requested for certification.