The H-2A is a nonimmigrant classification which allows U.S. employers to bring foreign nationals to the United States to fill seasonal and temporary agricultural jobs for which U.S. workers are not available.

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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.

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• To qualify as seasonal, employment must be tied to a certain time of year by an event or pattern, such as a short annual growing cycle or specific aspect of a longer cycle, and require labor levels far above those necessary for ongoing operations

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• To qualify as temporary, the employer’s need to fill the position must, except in extra-ordinary circumstances, last no longer than one year. The petitioner's need for the foreign worker’s services or labor shall be a:

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– Seasonal need for ≤ 1 year,
– Peakload need for ≤ 1 year,
– An intermittent need for ≤ 1 year, or – One-time occurrence for ≤ 3 years.

 

H-2B Numerical Limitation (aka “H-2B cap”)

 

66,000 H-2B workers per year allocated semi-annually:

- 33,000 for 1st half of Fiscal Year (Employment starting from 10/1 – 3/31)

- 33,000 for 2nd half of Fiscal Year (Employment starting from 4/1 – 9/30)

 

As for H-2A, there is no cap on the number of H-2A visas issued annually for any particular country or for the program overall.

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H-2A and H-2B Program Process

 

1. Employer files a job order and H-2B application. 90 to 75 days prior to the date of need, Employer files a job order with the State Workforce Agency (SWA) AND Submits the H-2B application (ETA Form 9142B) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC).

2. Employer obtains a Prevailing Wage Determination (PWD). At least 60 calendar days before it is needed, Employer obtains a PWD from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (ETA Form 9141).

3. Employer files a temporary labor certification (TLC) application with the U.S. Department of Labor (or Governor of Guam if H-2B worker is employed in Guam)

4. After receiving an approved TLC, Employer files an I-129 petition with USCIS (multiple workers may be included on a single petition).

5. If foreign worker is outside the U.S. and requires a visa, worker applies for an H-2B visa with Department of State at the consulate.

 

Period of Stay

 

• H-2A and H-2B status may be granted for the maximum period of time authorized on the labor certification (usually 1 year or less).

• A worker may extend status in H-2A or H-2B classification.

• For H-2B workers, employment with the same employer or a change of employer is not counted again against the H-2B Cap.

• Each extension may be granted a max period of time authorized on the labor certification submitted with the petition requesting an extension.

 

Limitation of stay in H-2A or H-2B status = 3 years.  Once 3 years have been reached the worker must leave the U.S. for at least 90 days before he or she is again eligible for H-2A or H-2B classification

 

Family of H-2A and H-2B workers

 

Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

 

H-2A and H-2B Eligible Countries List

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H-2A and H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security (DHS) has designated.  As of January 2017, nationals from the following countries are eligible to participate in the H-2A and H-2B program:

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