H-2B Temporary Non-Agricultural Workers

The H-2B nonagricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

To qualify for H-2B nonimmigrant classification:

• The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need;
• The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work;
• The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
• Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)
  

H-2B Cap

There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.  Currently, the H-2B cap set by Congress per fiscal year is 66,000, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year.  There is no “carry over” of unused H-2B numbers from one fiscal year to the next. 

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the numerical limit.  Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants (see below) are not counted against the numerical limit.  Id.  An individual who changes nonimmigrant status to H-2B classification is counted against the annual H-2B cap.  Additionally, fish roe processors, fish roe technicians and/or supervisors of fish roe processing are exempt from the H-2B Cap.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, see the “Cap Count for H-1B and H-2B Workers for Fiscal Year 2010” link to the right.

H-2B Program Process

• Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor.  Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).*  For further information regarding the temporary labor certification application requirements and process, see the "Foreign Labor Certification, Department of Labor" and “Foreign Labor Certification, Guam Department of Labor” links to the right.
• Step 2: Employer Submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129.  (See the instructions to the Form I-129 for additional filing requirements.)
• Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission.  After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.

Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip this step in the H-2B process.

H-2B Eligible Countries List

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*.

The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis.  Designation of countries on the H-2B list of eligible countries will be valid for one year from publication. 

Effective January 19, 2010, nationals from the following countries are eligible to participate in the H-2B Program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom and Uruguay.

* A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition.  [See 8 CFR 214.2(h)(2)(iii) and (6)(i)(E)(2) for additional evidentiary requirements.] 

Period of Stay

Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year).   H-2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.

An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant.  See 8 CFR 214.2(h)(13)(iv) for further details on departure requirements.

Family of H-2B Workers

Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 nonimmigrant classification.  Family members in H-4 nonimmigrant classification may not engage in employment in the United States.

Employment-Related Notifications to USCIS

Petitioners of H-2B workers must notify USCIS within 2 workdays if an H-2B worker is a:

• No show: an alien who fails to report to work within 5 work days of the employment start date on the H–2B petition;
• Absconder: an alien who fails to report for work for a period of 5 consecutive workdays without the consent of the employer; 
• Termination: an alien who was terminated prior to the completion of agricultural labor or services for which he/she was hired; or
• Early Completion: an alien who completes the H-2B labor or services for which he/she was hired more than 30 days early.

As stated in a notice published by DHS in the federal register on December 19, 2008, petitioners must include the following information in their Employment-Related notification:

1. The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion);”
2. The reason for untimely notification and evidence for good cause, if applicable;
3. The USCIS receipt number of the approved H–2B petition;
4. The petitioner’s information:
   • Name
   • Address
   • Telephone number 
   • Employer identification number (EIN)
5. The employer’s information (if different from that of the petitioner):
   • Name
   • Address
   • Telephone number
6. The H-2B worker’s information:
   • Full Name
   • Date of birth
   • Place of birth
   • Last known physical address & telephone number

Additionally to assist USCIS with identification of the H-2B worker, USCIS requests that, if available, petitioners also submit each H-2B worker’s:

• Social Security Number, and
• Visa Number