The H-2B visa program
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 nonagricultural jobs. A U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf.
Who May Qualify for H-2B Classification?
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
- There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
- Employing 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 employer’s need is considered temporary if it is a(n):
One-time occurrence – A petitioner claiming a one-time occurrence must show 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.
- 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;
Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Note: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:
- Traditionally tied to a season of the year by an event or pattern; and
- Of a recurring nature.
- Subject to change; or
- Considered a vacation period for your permanent employees.
Peak load need – A petitioner claiming a peak load need must show that it:
- Regularly employs permanent workers to perform the services or labor at the place of employment;
- 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 – A petitioner claiming an intermittent need must show 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.
H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).