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.
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
The employer's need for the worker's services or labor is temporary
The petitioner must have a valid temporary labor certification from the U.S. Department of Labor
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Regulatory Criteria
One-Time Occurrence Need
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.
Examples
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker
Has not employed workers to perform the service or labor in the past
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 is traditionally tied to a season of the year by an event or pattern and is of a recurring nature.
Examples
Service or labor is traditionally tied to a season of the year by an event or pattern
The need is of a recurring nature
Cannot claim seasonal need if the time period when you do NOT need the service or labor is unpredictable, subject to change, or considered a vacation period for permanent employees
Peak Load Need
A petitioner claiming a peak load need must show that it regularly employs permanent workers and needs to temporarily supplement its permanent staff due to a seasonal or short-term demand.
Examples
Regularly employs permanent workers to perform the services or labor at the place of employment
Needs to temporarily supplement permanent staff due to a seasonal or short-term demand
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 and occasionally needs temporary workers for short periods.
Examples
Has not employed permanent or full-time workers to perform the services or labor
Occasionally or intermittently needs temporary workers to perform services or labor for short periods
H-2B Cap and Limitations
There is a statutory numerical limit on the total number of aliens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year.
Examples
33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31)
33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30)
Unused numbers from the first half of the fiscal year are available for employers seeking to hire H-2B workers during the second half
Some workers are exempt from the H-2B cap
Period of Stay
USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. The maximum period of stay in H-2B classification is 3 years.
Examples
H-2B classification may be extended for qualifying employment in increments of up to 1 year each
A new, valid temporary labor certification must accompany each extension request
Maximum period of stay is 3 years
After 3 years, must depart and remain outside the U.S. for at least 60 days before seeking readmission
Previous time spent in other H or L classifications counts toward total H-2B time
Prohibition on Fee Collection
As a condition of approval, no job placement fee, fee for breach of contract, or other fee related to H-2B employment may be collected from a beneficiary.
Examples
No job placement fees from workers
No fee or penalty for breach of contract
No deduction or withholding of wages related to prohibited fees
Passing a cost to the beneficiary that is the responsibility of the petitioner constitutes a prohibited fee
USCIS will deny or revoke petitions if prohibited fees are collected
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Application Process
Labor Certification
Petitioner submits temporary labor certification application to DOL.
DOL Approval
Receive temporary labor certification from DOL (or Guam DOL if applicable).
File I-129
Petitioner files Form I-129 with USCIS with original labor certification.
USCIS Approval
USCIS reviews and approves Form I-129 petition.
Apply for Visa
Workers outside U.S. apply for H-2B visa at U.S. Embassy or Consulate.
Seek Admission
Seek admission to the United States with CBP at a U.S. port of entry.
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Key Benefits
Allows temporary employment in the United States for nonagricultural work
Classification may be extended in increments of up to 1 year each
Maximum period of stay is 3 years
An absence of at least 60 days resets the 3-year limit
Spouse and unmarried children under 21 may apply for H-4 classification
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Documents Needed
Form I-129, Petition for a Nonimmigrant Worker (filed by employer)
Original temporary labor certification from U.S. Department of Labor
Evidence of employer's temporary need (one-time, seasonal, peak load, or intermittent)
Evidence that there are not enough U.S. workers available
Evidence that employing H-2B workers will not adversely affect U.S. workers
Valid passport for at least six months beyond period of stay
DS-160 confirmation page (for visa application)
Visa application fee payment receipt
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Frequently Asked Questions
What is the H-2B cap?
Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half (April 1 - September 30). Some workers are exempt from the cap.
How long can I stay in the United States on H-2B status?
The maximum period of stay in H-2B classification is 3 years. After 3 years, you must depart and remain outside the United States for an uninterrupted period of at least 60 days before seeking readmission as an H-2B nonimmigrant.
Can I reset the 3-year limit?
Yes. An absence from the United States for an uninterrupted period of at least 60 days at any time will result in the H-2B worker becoming eligible for a new 3-year maximum period of stay. Brief trips to the U.S. for business or pleasure during this time do not count toward fulfillment of the 60-day requirement.
Can my employer charge me recruitment fees?
No. As a condition of approval, no job placement fee, fee for breach of contract, or other fee related to H-2B employment may be collected from workers. USCIS will deny or revoke petitions if prohibited fees are collected.
What is the difference between H-2A and H-2B?
H-2A is for temporary agricultural workers, while H-2B is for temporary non-agricultural workers. Both require the employer to demonstrate a temporary need and obtain labor certification from the Department of Labor.
Can my family accompany me?
Yes. Your spouse and unmarried children under 21 may apply for H-4 classification to accompany you to the United States. H-4 dependents are not authorized to work in the United States.
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Fees
Attorney Fee for TLC
$650
USCIS ETA-9142B
$100 (base); $10/worker
Attorney Fee for I-129
$2,450 (Initial $1,450; $500/month)
Each Beneficiary
$575
USCIS I-129 for named
$1,080/$540
USCIS I-129 for unnamed
$580/$460
Fraud Prevention Fee
$150
Premium Processing
$1,685
Fees are estimates and may change. Contact us for a quote for your specific case.
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