H-2B Visas

The H-2B visa is an employer-sponsored nonimmigrant visa for temporary nonagricultural workers. The H-2B visa program provides relief to seasonal businesses, businesses that experience predictable fluctuations in employment needs, or for one-time occurrences of labor shortages. The H-2B visa is in demand – the U.S. government allows for 66,000 visas each year – 33,000 are allocated during the first half of the fiscal year (October 1 – March 31), and 33,000, plus any additional visas from the first half of the fiscal year, are allocated during the second half of the fiscal year (April 1- September 30). In order to petition for an H-2B visa, employers must first obtain temporary labor certification from the Department of Labor (DOL), which proves the employer is paying the prevailing wage for the H-2B position, and there are not enough U.S. workers to fill job vacancies.

H-2B Employer Requirements

1. Employer with valid FEIN;
2. Have a U.S. place of business/physical location; and
3. Have a means for contact for employment purposes.

H-2B Position Requirements

1. Temporary;
2. Full time (i.e., 35+ hours per week); and
3. Non-agricultural.

What is the “Temporary” Requirement for the H-2B Visa?

H-2B visas are used for temporary, nonagricultural jobs. Most importantly, the employer must prove there are not enough U.S. workers who are willing, able, and qualified to do the work, and the wages and working conditions of U.S. workers will not be impacted by employment of foreign nationals. The work must be “temporary,” as defined by United States Customs and Immigration Services (USCIS). This includes:

• One-time occurrence – A temporary event of short duration has created the need for a temporary worker. The employer has not employed workers to perform the services or labor in the past and will not need workers to perform the services or labor in the future; OR
• Seasonal need – Recurring work that is traditionally tied to a season of the year by an event or pattern. Seasonal need cannot be claimed if the need of the service or labor is unpredictable, subject to change, or considered a vacation period for permanent employees; OR
• Peak load need – H-2B visas used to supplement permanent staff due to season or short-term demand. However, the employer attests that the temporary workers will not become part of the Petitioner’s regular business operations; OR
• Intermittent need –The employer occasionally or intermittently needs temporary workers to perform services or labor for short periods, and has not previously employed permanent or full-time employees to perform the same services or labor.

Duration of H-2B Visa

The USCIS may grant the H-2B visa for up to the period authorized on the temporary labor certification. The government, historically, has taken the stance that “temporary” means a maximum of ten (10) months before the H-2B worker must depart the United States. The worker must then return to their home country and any subsequent stays in the United States require the employer to apply for a new H-2B visa. The maximum period authorized for stay for H-2B visa holders is three (3) years.

What jobs qualify for H-2B Visa?

Employers from a wide variety of industries utilize the H-2B visa, including:

H-2B Visa Process – Temporary Labor Certification

In order to sponsor foreign workers on an H-2B visa, employers must file a Prevailing Wage Determination with the DOL attesting that they will pay the workers the prevailing wage for the position offered, as well as obtain temporary labor certification from the DOL. During this stage of the H-2B adjudication, the DOL will determine that there are not enough U.S. workers to perform the temporary work for an employer, and that employment of foreign workers will not negatively impact the wages and working conditions of U.S. workers.

H-2B Lottery

Given the limited number of H-2B visas compared to the demand, USCIS allocates visas based on a randomly generated lottery system. Employers are encouraged to compile evidence of its temporary need well in advance since the lottery closes as soon as the quota (33,000 visas for that half of the fiscal year) is met.

Critical Timing Requirements

1. Prevailing Wage Determination: at least 60 calendar days before the employer needs the workers
2. Job Order and H-2B Application: 90-75 days before the employer needs the workers.

Changes to H-2B System

Occasionally, the Department of Homeland Security (DHS) releases additional H-2B visas to respond to labor shortages – in April of 2021, DHS released 22,000 more H-2B visas, with the stipulation that 6,000 are used for citizens of Guatemala, El Salvador and Honduras.

Dependent Family Members

While dependent family members may join the H-2B worker in the United States, they are not authorized to work during their stay in the United States.

Interested in learning more? FordMurray offers complimentary consultations for employers who are considering hiring with the H-2B visa program.