The H-2B visa classification allows employers to bring in foreign workers to fill temporary non-agricultural positions. Businesses in industries as diverse as hospitality and tourism, landscaping, seafood processing, and more. depend on seasonal or temporary workers. The H-2B program allows employers to temporarily hire non-nationals to perform non-agricultural work or services in the United States. Employment must be temporary in nature, such as a one-time event, seasonal need, or intermittent need.
Employers looking for H-2B workers should take a series of steps to test the labor market. They must also certify in their petitions that there are not enough capable, willing, qualified, and available U.S. workers to perform the temporary work for which they are seeking a prospective foreign worker. Additionally, employers must certify that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Here is a quick summary of the steps.
H-2B Eligible Nations
As a general rule, United States Citizenship and Immigration Services (USCIS) only approves H-2B applications for nationals of countries that the Secretary of Homeland Security has designated as eligible to participate in the programs; 87 nations, including Mexico, are currently eligible to participate in the H-2 program.
The H-2B visa classification has a statutory numerical limit of 66,000 per fiscal year divided into 33,000 for employees who start work in the first half of the fiscal year (October 1 to March 31) and 33,000 visas for employees starting work in the second half of the fiscal year (April 1-September 30). All unused numbers from the first half of the fiscal year will be available to employers looking to hire H-2B workers in the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over to the next fiscal year.
On October 12, 2022, the Department of Homeland Security (DHS), in consultation with the Department of Labor (DOL), announced that it would issue regulations that will make available to employers an additional 64,716 H-2B visas for the fiscal year 2023, in addition to the 66,000 H-2B visas that are normally available each fiscal year. Supplemental H-2B visas include a $20,000 allowance for workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,716 additional visas will be available to returning workers who received an H-2B visa, or who otherwise obtained H-2B status, in any of the last three fiscal years.
Period of stay
Generally, the USCIS can grant the H-2B classification up to the authorized period on the temporary labor certification. The H-2B classification can be extended for qualifying employment in increments of up to one year each. A new valid temporary work certificate covering the time requested must accompany each extension request. The maximum length of stay in the H-2B classification is three years.
A person who has held H-2B status for a total of three years must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission under the H-2B classification. Additionally, time spent in other H or L classifications counts toward total H-2B time. Certain periods of time spent outside the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the three-year limit.
Sponsored employment must be temporary in nature to qualify for an H-2B. An employer’s need is considered temporary if:
An organization claiming a one-time event must demonstrate that it has:
An otherwise permanent employment situation, but a temporary event of short duration created the need for a temporary worker.
Workers not employed to perform the service or work in the past, and will not need workers to perform the services or work in the future.
An organization asserting a seasonal need must demonstrate that the service or labor for which it is seeking workers is:
Note: You cannot declare a seasonal need if the period during which you do NOT need the service or the labor is unpredictable; subject to change; or considered vacation time for your permanent employees.
Peak load requirement
An organization reporting a one-time event must demonstrate that it:
Regularly employs permanent workers to perform the services or work at the workplace;
Must temporarily supplement permanent staff in the workplace due to seasonal or short-term demand; and
Temporary additions to staff will not be part of the regular operation of the employer.
An organization claiming an intermittent need must demonstrate that it:
Did not employ permanent or full-time workers to perform the services or work; and
Occasionally or intermittently needs temporary workers to provide services or work for short periods
The H-2B process involved the following steps:
Obtain a current wage determination from the DOL
Filing an application for temporary labor certification with the DOL and a work order with the national manpower agency
Recruit American workers
Filing a Nonimmigrant Worker Petition with USCIS
If the worker is outside the United States, apply for an H-2B visa at a United States embassy or consulate to enter the United States and begin work
Employers participating in the H-1B process must agree to comply with several requirements. Employers must comply with these requirements with respect to both their H-2B workers and workers in corresponding employment. Matching employment is generally defined as non-H-2B workers performing substantially the same work as included in the work order or substantially the same work as that performed by H-2B workers, with exclusions for certain incumbent workers in the long term and for certain workers within the framework of a collective agreement or an individual employment contract.
It should be noted that the employer must pay at least the proposed wage listed on the H-2B application, which is equal to or greater than the highest prevailing wage or the federal minimum wage, state minimum wage, or local minimum wage, for all hours worked during the entire period of the work order, and must pay that wage upfront and clear. If workers are paid on the basis of piece rates, commissions, bonuses or other incentives, the employer guarantees a wage earned each week of work that is equal to or greater than the wage offered.
The employer must make all deductions from workers’ wages required by law. Other additional deductions must be reasonable and must be disclosed in the work order. Undisclosed deductions are prohibited. The employer must guarantee to offer workers employment for a total number of working hours equal to at least 75% of the working days in each 12-week period (or in each six-week period if the order is less at 120 days). If, in a 12-week or six-week period, the employer does not offer H-2Bs or corresponding workers enough hours to meet the three-quarters guarantee, the employer must pay those H-2Bs workers the amount they would have earned if they had actually worked for the guaranteed number of working days.
The employer must keep accurate records of workers’ earnings, hours of work offered and hours actually worked. No later than each payday (which must occur at least every two weeks or as is the practice in the intended field of employment, whichever is more frequent), each worker must receive a pay stub showing the hours offered, hours actually worked, hourly rates and/or piece rates and, if piece rates are used, the number of units produced daily. The pay stub must also show the total earnings for the pay period and any deductions from wages.
In addition, the employer must either advance all visa, border crossing, and visa expenses to H-2B workers, pay them directly, or reimburse all such expenses within the first week of work. The employer advances all transport and subsistence costs of the workers who come to the employer’s site, pays them directly or reimburses the costs. The employer must keep all documents relating to application and registration, documents relating to recruitment, payslips and supporting documents for three years.