H-2B Temporary Non-Agricultural Worker Visas
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.
The petitioner or employer must prove:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work;
- The employment of 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 "temporary" job requirement
A job is considered "temporary" if it is a one-time occurrence, a seasonal need, a peakload need, or an intermittent need. Each one of the following is an example of "temporary" need:
- One-time occurrence: the petitioner has 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 the petitioner has an employment situation that is otherwise permanent but a temporary event of short duration has created the need for a temporary worker.
- Seasonal need: an employer shows 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 is of a recurring nature.
- Peakload need: an employer demonstrates that it regularly employs permanent workers to perform the services or labor at the place of employment, it 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.
- Intermittent need: the employer proves 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.
Period of Stay
H-2B visa holders may be admitted only for the period of time authorized on the temporary labor certification. H-2B visas 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. Any individual who has held H-2B 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 to H-2B status.
Benefits for family members
Spouses and unmarried children (under 21) of the H-2B visa holder may seek admission in H-4 status. Family members are not eligible for employment in the United States while in H-4 status.
Employer notification requirements
Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:
- The H-2B worker fails to report to work within 5 work days of the latter of the employment start date on the H-2B petition or the start date established by the employer ("No show")
- The H-2B worker leaves without notice and fails to report for work for 5 consecutive workdays without the consent of the employer ("Abscondment")
- The H-2B worker is terminated prior to the completion of the H-2B labor or services for which he or she was hired ("Termination")
- The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition ("Early Completion")
The procedures and requirements for notification are defined by the regulations. A petitioner who fails to comply with the employment notification requirements or fails to demonstrate good cause for untimely notification may be required to pay $10 in liquidated damages for each instance of noncompliance.
Eligible H-2B countries
Effective January 18, 2015, the following is a complete list of eligible countries:
- Costa Rica
- Czech Republic
- Dominican Republic
- El Salvador
- New Zealand
- Papua New Guinea
- Solomon Islands
- South Africa
- South Korea
- The Netherlands
- The Philippines
- United Kingdom