Various visa categories allow nonimmigrants to work in the United States. The H-2B and H-2A visas are excellent examples, with the H-2B Visa allowing employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States.
The H-2A visa allows H-2A workers to perform temporary or seasonal agricultural labor or services that no U.S. workers are available. The H-2A program is rapidly expanding year after year, providing foreigners with the opportunity to work in the United States with their agricultural skills.
Although the two visa categories have some similarities, some significant differences will be discussed in this article.
H-2A visa: Temporary Agricultural Workers and H-2B visa: Temporary Nonagricultural Workers
In the H–2A visa category, the Immigration and Nationality Act allows for the lawful admission into the United States of temporary, nonimmigrant workers to perform agricultural labor or services of a temporary or seasonal nature.
In a nutshell, H-2A visas are for nonimmigrants who want to work in the agricultural sector in the United States for a limited time.
The H-2B nonimmigrant visa program allows U.S. employers to temporarily hire nonimmigrants for nonagricultural jobs in the U.S. The employment must be of a limited term, such as a one-time occurrence, seasonal need, peak-load need, or intermittent need.
The H–2B and H–2A visas allow foreign workers to work temporarily in the United States but different sectors. For example, the H-2A visa only allows nonimmigrants to work in the agricultural industry. This is not the case for the H-2B visa, which allows nonimmigrants to work in nonagricultural labor or services in the United States.
Before the United States, Citizenship and Immigration Services (USCIS) can approve an employer’s petition for H–2A and H–2B visas. The employer must file an application with the Department’s Employment and Training Administration (ETA) stating, among other things, that there are not enough workers who are able, willing, qualified, and available.
Also, the employment of aliens will not adversely affect the wages and working conditions of similarly employed workers in the United States.
Any U.S. employer who wants to hire H-2A and H-2B workers must first try to fill these positions with American workers.
H-2A and H-2B Program Process
The process for obtaining an H-2B and H-2A is similar in three steps. That process begins with obtaining a temporary labor certification, then submitting a petition for an H2 visa and, finally, the application for a visa.
Step 1: The employer/petitioner submits an application for temporary labor certification(TLC) to the U.S. Department of Labor (DOL) as the first step in the three-step process. The petitioner must first apply for TLC before requesting H-2A or H-2B classification from USCIS.
Step 2: The petitioner files Form I-129 with USCIS. After receiving a temporary labor certification from the DOL for H-2A or H-2B employment, the petitioner must file Form I-129 with USCIS and the TLC.
Step 3: After USCIS approves Form I-129, prospective H-2A or H-2B workers outside the U.S. must apply for a visa and admission to the U.S.
The application for an H-2A or H-2B visa through the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad, and then seek admission to the U.S. through U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or In cases where an H-2A or H-2B visa is not required, directly apply for admission to the United States in H-2A or H-2B classification with CBP at a U.S. port of entry.
How long can an H-2 visa holder stay in the United States?
The temporary labour certification generally states the authorized stay period for workers in the H-2A and H-2B categories with the possibility to extend the period of stay. In the H-2A or H2B classification, the maximum period of stay is three years.
Specifically, H-2A workers cannot work for more than a year unless there are exceptional circumstances, whereas H2B workers can work for more than a year if it is a one-time occurrence.
A person who has held H-2 nonimmigrant status for a total of three years must leave and remain outside the United States for three months before applying for readmission as an H-2 nonimmigrant.
However, if the time on the TLC has elapsed, there is a provision for an extension of the stay period; meanwhile, if the approval of the extension of the stay period would result in the worker staying for more than 3 years, the request will be denied.
H-2 Dependents and Extension of Stay Period
The good news about the H2 visa category is that those workers can bring their families with them to the U.S.
In other words, an H2 worker’s spouse and unmarried children under 21 may apply for admission in the H-4 nonimmigrant category for the same period of access or extension as the H–2B worker.
It is important to note that family members with H-4 status are not eligible for employment in the United States, but they can attend school.
Obtaining an H-4 visa for H2 dependents, the prospective H2 visa holder and dependents must apply for both the H-2 visa and the H-4 visa at the U.S. Consulate in their home country at the same time.
During the pendency of the new employer’s petition, H-4 dependents of H-2 workers face the same restrictions on stay and permission to remain in the country as the H-2 beneficiary. As a result, H-4 dependents can remain in the United States as long as the H–2 worker’s stay is authorized.
H-2A and H-2B Eligibility
To be eligible for H-2A nonimmigrant status, the petitioner must meet the following criteria:
- Offer a temporary or seasonal job
- Show that there are not enough American workers who are able, willing, qualified, and available to do the temporary work.
- Demonstrate that prospective employees are nationals of an H-2A eligible country
- Demonstrate that employing H-2A workers will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers; and
- Submit a valid temporary labor certification from the US department of Labor with the H-2A petition
H-2B Visa Eligibility:
To be eligible for H-2B nonimmigrant classification, the petitioner must demonstrate:
- that there are insufficient American workers who are capable, willing, qualified, and available to perform the temporary work.
- The prospective employees are nationals of an H-2B-eligible country ( Note that the list of can be found on the H-2B Temporary Non-agricultural Workers page).
- Employing H-2B workers will not have a negative impact on the wages and working conditions of similarly employed American workers; and
- Its requirement for the prospective worker’s services or labor is temporary, regardless of whether the job is described as such. The employer’s requirement is temporary if a(n): temporary, one-time occurrence, peak load, seasonal need.
Employer eligibility for H2A and H2B classification is very similar, but there are some differences.
Both are specific to the job being temporary. Still, the temporary nature of the H2B visa must be a one-time occurrence, seasonal need, peak-load need, or intermittent need.
Temporary work is considered temporary for the H-2B program if it falls into one of the following categories:
- Seasonal need: a job is deemed seasonal if an event has traditionally been linked to a specific season of the year. The Petitioner/employer will be clear about the time when the service of the temporary worker would not be needed.
- One-time Occurrence: A one-time occurrence indicates that the employer will not require workers to perform the services or labor in the future, making it more of a one-and-done temporary job.
- Peak load need: The employer regularly employs permanent workers to perform services or work at the workplace, but the employer needs to supplement its permanent employees seasonally due to temporary positions/ events.
- Intermittent need: The employer does not have permanent or full-time workers to perform the services or labor but occasionally relies on temporary workers for short periods.
However, for the H2A visa, it can either be temporary or seasonal.
- It is seasonal if the employment is for a specific time of year by an event or pattern, such as a short annual growing cycle or a specific aspect of a larger cycle.
- To qualify as a temporary job, the employer’s need to fill the position must last no more than one year unless exceptional circumstances exist.
Annual limit for H–2A and H–2B
The Immigration and Nationality Act imposes a statutory numerical limit on the number of H-2B Visas that can be issued in a fiscal year (INA). Congress has established a yearly cap of 66,000 H2B visas.
They are divided into two periods: 33,000 for workers starting in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers starting in the second half of the fiscal year (April 1 – September 30), plus any unused numbers from the first half of the fiscal year.
The unissued number from one fiscal year, however, cannot be carried over to the next.
There is no annual visa limit for H-2A workers.
FAQs About H–2A and H–2B
How Much Does an H-2A Visa Cost?
The H-2A visa application fee is $460, not including the consulate fee. The visa fee is $190 if you need to apply for a U.S. visa at a U.S. embassy or consulate abroad.
How Much Does an H-2B Visa Cost?
The USCIS processing fee for an H-2B petition is $460 as of January 2021. The visa fee is $190 if you need to apply for a U.S. visa at a U.S. embassy or consulate abroad. Other fees may apply depending on your nationality.
Premium Processing Service is available for H-2B petitions for an additional fee.
How long can I stay in the U.S. with an H2A visa?
The stay period of H-2A workers is usually stated authorized on the labor certification (usually one year or less) unless the worker is allowed to stay for more than one year under special circumstances.
The maximum period of stay, however, is three years.
Could You Find Out How We Can Help You?
A little professional guidance can help you save money and time. As a result, please do not hesitate to contact the Herman Legal Group.
We are a multi-award winning immigration law firm founded in 1995 with extensive experience in all areas of immigration, including family, employment, investor, deportation defense, and citizenship.
To schedule a personal consultation with Attorney Richard Herman, call 1-800-808-4013 or 1-216-696-6170, or book online. Consultations can be held over the phone, via Zoom, Skype, WhatsApp, Facetime, or in person.