How H-2B Visas Work for Seasonal Workers and Employers

Introduction

A landscaping company in North Carolina needs extra crews every spring and cannot find enough local workers. A hotel needs housekeeping staff for a busy summer season. These are the situations the H-2B program was built for.

H-2B is the temporary non-agricultural worker classification. It involves two government agencies, a job order, recruitment of U.S. workers, and a petition that must be filed at the right time. Mistakes in the first step can undo the whole process.

This page explains how the program works for employers and for workers. If you are searching for an H-2B visa lawyer for seasonal workers, it will help you understand the steps before you call the firm.

What the H-2B Program Covers

USCIS describes H-2B as a program that lets U.S. employers bring foreign nationals to fill temporary nonagricultural jobs. The employer must show that there are not enough U.S. workers who are able, willing, qualified and available to do the work.

The employer must also show that hiring H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. Both points are reviewed by the government, not assumed.

The need for the work must be temporary. USCIS recognizes four categories: a one-time occurrence, a seasonal need, a peakload need and an intermittent need. Each category has its own proof requirements.

The Department of Labor rule at 20 C.F.R. § 655.6 sets out the H-2B temporary need rules. Congress has directed that temporary need for H-2B generally means one year or less, except a one-time occurrence. Check the current DOL rules before you file. The Department of Homeland Security keeps the final say on whether the need is temporary.

The job must also be full-time and non-agricultural. Typical employers include landscapers, resorts, seafood and food processors, and construction or hospitality businesses. Whether your job fits is a question to review before any filing.

Employer Steps: Labor Certification and Form I-129

The employer side has two main stages. First comes the temporary labor certification with the Department of Labor. Second comes Form I-129, Petition for a Nonimmigrant Worker, filed with USCIS.

Prevailing Wage and Job Order

Before filing the application, the employer must obtain a prevailing wage determination from the Department of Labor. DOL encourages employers to file at least 60 days before they need the determination.

The application is Form ETA-9142B, the H-2B Application for Temporary Employment Certification. It requires a valid prevailing wage tracking number and a copy of the job order submitted to the state workforce agency.

Recruitment of U.S. Workers

After DOL issues a Notice of Acceptance, the employer has 14 days to follow its instructions and recruit U.S. workers. DOL posts the job on SeasonalJobs.dol.gov. The employer must contact former U.S. workers and either contact the bargaining representative or post the job for current employees. The certifying officer may direct additional recruitment.

In our experience, employers most often fall behind on the recruitment records. Keep copies of every advertisement, every contact and every response from the first day, because you may need to show them later.

Filing Form I-129 With USCIS

Once the employer has the temporary labor certification, it files Form I-129 with USCIS. The petition generally includes the original certification. A printed final determination from the DOL FLAG system counts as the original.

Employers can use the firm to review the certification, the petition and the supporting documents together. The firm works with employers virtually and by phone, so you do not need to be in North Carolina.

Worker Steps: Consular Processing and Maintaining Status

When USCIS approves the petition, a worker who is outside the United States generally applies for an H-2B visa at a U.S. embassy or consulate. The worker then asks to be admitted by U.S. Customs and Border Protection at a port of entry.

Where a visa is not required, the worker may seek admission in H-2B status directly at the port of entry. The employer or the firm can confirm which rule applies to your nationality.

The first stay is generally limited to the period on the temporary labor certification. Extensions are granted in increments of up to 1 year, and each one needs a new valid certification.

USCIS states that the maximum period of stay in H-2B classification is 3 years. After that, the worker must stay outside the United States for at least 60 consecutive days before seeking readmission in H-2B status.

Spouses and unmarried children under 21 may be admitted in H-4 status. H-4 family members are not eligible to work.

The rules on changing employers while in the United States are detailed. The firm does not give a general answer here. Ask about your own facts during a consultation.

Duties That Continue After Approval

The petitioner has reporting duties. USCIS says it must notify the agency within 2 workdays if a worker stops reporting for 5 consecutive workdays, is terminated early, or finishes more than 30 days early. Notice is also due when a worker does not report within 5 workdays of the start date.

Workers and their families cannot be charged prohibited fees related to H-2B employment. Employers and workers should both know this rule before recruiters get involved.

The firm does not handle wage disputes, discrimination or retaliation claims. A workplace injury is a separate matter. In North Carolina it may fall under workers' compensation.

H-2B Compared With H-2A and Other Temporary Work Visas

H-2B and H-2A are different programs. H-2A is for temporary agricultural work, and the firm has a separate page on the H-2A visa. H-2B is for temporary work outside agriculture.

Some jobs do not fit either program. If the position is long-term or needs a specific degree, a different category may apply. Our page on work visas explains the other options.

People also search for a temporary worker visa attorney when they are not sure which category applies. The right choice depends on the job, the length of the need and the employer.

Planning Dates, Job Terms and Recruiters

Most H-2B problems start with planning, not paperwork. The employer picks a start date, and every other date works backward from it. The prevailing wage step, the job order, the recruitment window and the petition all need room before that date.

The dates on the temporary labor certification also set the first period of stay. If the dates are wrong, the petition and the worker's visa application will carry the same error. Review them before anything is signed.

The job terms deserve the same care. The job order, the petition and the offer the worker receives should describe the same duties, hours and location. Different descriptions in different places invite questions from the government.

Many employers use a recruiter or an agent to find workers abroad. DOL asks for agent and recruiter documentation when one is used. The employer should know who is recruiting and what that person tells workers.

Workers should also ask questions. Is the job offer in writing? Does it match what the recruiter said? Has anyone asked for payment? These questions are easier to ask before travel than after arrival.

Some employers have workers who return each season. Each return still needs a valid certification and an approved petition. The 3-year limit and the 60-day break outside the country also apply to returning workers.

A short consultation can sort out these planning questions. The firm reviews dates, job terms and documents by phone or video, and explains which steps belong to you and which belong to the government.

Employers should also decide who will manage the file. One person should own the deadlines, the recruitment records and the contact with the government. When several people share the task, notices get missed and records go missing.

Keep every government notice, every email with a recruiter and every signed job offer in one place. If a question comes later, you can answer it quickly and with documents instead of memory.

Checklist: What You Need

Employers should gather these items before the first filing.

• A valid federal employer identification number (FEIN) and proof the business is a bona fide U.S. employer.
• A clear description of the job, full-time hours and the dates of need.
• A written explanation of why the need is one-time, seasonal, peakload or intermittent.
• A prevailing wage determination from the Department of Labor.
• Form ETA-9142B and the job order for the state workforce agency.
• Records of your recruitment of U.S. workers.
• Agent or recruiter documents, if you use one.
• Form I-129 and the original or printed final certification.

Workers should prepare the following.

• A valid passport.
• The approval notice or receipt number from the employer.
• The job offer and a written list of the job terms.
• Documents for any spouse or children who will apply as H-4.
• A record of any earlier U.S. stays in H-2B status.

Timeline and Process

The stages below show the order of events. For current timing, check the USCIS processing times page for Form I-129. Check the Department of Labor H-2B page for its stage.

The cap can affect when you file. Congress set 33,000 numbers for work starting October 1 to March 31 and 33,000 for work starting April 1 to September 30. Check the current USCIS H-2B cap page for the status of the cap and any supplemental visas.

Cost Factors

Government fees and legal fees depend on the case. The firm does not quote a price on this page.

One point deserves care. Workers and their families cannot be charged prohibited fees for H-2B employment. If a recruiter asks for money, ask questions before you pay.

Common Mistakes to Avoid

• Choosing H-2B for farm work, when H-2A is the right program.
• Describing a year-round job as seasonal. The need must be temporary.
• Starting the prevailing wage step too late.
• Missing the 14-day recruitment window after the Notice of Acceptance.
• Losing the recruitment records.
• Filing Form I-129 without the original or the printed final certification.
• Failing to notify USCIS within 2 workdays after a worker stops reporting.
• Paying a recruiter a prohibited fee.
• Staying past 3 years without a 60-day break outside the country.
• Waiting on cap news without a plan for the start date.

When to Contact Vasquez Law Firm

Contact the firm before you file anything, not after a denial. An employer should call when it plans seasonal staffing for the next season. A worker should call when a job offer, a recruiter or a prior stay raises questions.

The firm can review your situation by phone or video. Consultations are in English and Spanish. A free consultation is available when the case qualifies. You can also reach the team through the contact page.

The firm does not handle disputes about wages, discrimination or retaliation. It does not offer a consultation at a Charlotte office.

About Vasquez Law Firm

Attorney William J. Vásquez leads the firm. The offices are at 4426 Louisburg Road, Suite 206, Raleigh, NC 27616 and 612 South Brightleaf Boulevard, Smithfield, NC 27577.

Immigration help is also available nationwide by phone and video. Call 1-844-967-3536. Consultations are in English and Spanish, and a free consultation is available when the case qualifies.

Frequently Asked Questions

Sources and References

• USCIS: H-2B Temporary Non-Agricultural Workers
• USCIS: Cap Count for H-2B Nonimmigrants
• USCIS: Form I-129, Petition for a Nonimmigrant Worker
• Department of Labor: H-2B Temporary Non-Agricultural Program
• 20 C.F.R. § 655.6, Temporary need
• USCIS: Filing fees
• USCIS: Processing times

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