Start Now for Next Period

On September 19, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it has reached the H-2B cap for temporary nonagricultural workers for the first half of FY 2025. See below for details.

Key Points

• Cap Hit: As of September 18, 2024 USCIS has received enough petitions to meet the H-2B cap for temporary nonagricultural workers for first half of FY 2025.
• Final Filing Date: The last day USCIS will accept new H-2B cap-subject petitions for jobs starting before April 1, 2025 was September 18, 2024.
• Petitions After the Cap: Any new petitions received after this date requesting an employment start date before April 1, 2025 will be rejected if they are cap-subject.

About the H-2B Visa Program

The H-2B visa program allows U.S. employers to hire foreign workers to fill temporary nonagricultural jobs when U.S. workers are not available. The visa cap, set by Congress, limits the number of H-2B visas issued each year. Here’s how it works:

• 66,000 Visas per Year: Congress sets an annual H-2B cap of 66,000.
• Two Halves:
• 33,000 visas for workers starting employment in the first half of the fiscal year (October 1 to March 31).
• 33,000 visas (plus any remaining visas from the first half) for those starting employment in the second half of the fiscal year (April 1 to September 30).

Exceptions: Who’s Exempt?

Even though the cap is hit, some petitions are still exempt. These are:

H-2B Workers Already in the U.S.:

• Extend their stay,
• Change employers,
• Change terms and conditions of employment

Specific Jobs Exempt from the Cap:

• Fish Roe Processing: Fish roe processors, fish roe technicians, supervisors in fish roe processing

Workers in the Commonwealth of the Northern Mariana Islands and Guam:

• This exemption applies to workers performing labor or services in these areas since November 28, 2009 and ends December 31, 2029.

H-2B Workers Counted in the Same Fiscal Year:

Workers who have already been counted towards the cap for the current year will not be counted again if the employer names them on the petition and checks the box for prior count.

Family of H-2B Workers:

Spouses and children (H-4 nonimmigrants) of H-2B workers do not count towards the cap.

What’s Next for Employers and Applicants

Employers:

• If you need H-2B workers for start dates before April 1, 2025, consider applying in the second half of the fiscal year when the new allotment opens.
• Check if your H-2B jobs are exempt above.

Workers:

• If you’re already in the U.S. on an H-2B visa, you may be able to extend your stay or change employers without being cap-subject.

More

For more information on H-2B caps and counts visit the Cap Count for H-2B Nonimmigrants page on the USCIS website. This page has the most up-to-date information on cap counts, program requirements and policy changes and quotas.

---

H-2B Program Overview

The H-2B program allows U.S. employers, including agents who meet certain regulatory requirements, to hire foreign nationals as temporary workers in nonagricultural jobs. This is for seasonal, peak-load or short-term work in industries such as landscaping, hospitality and entertainment.

• Who Files: The employer or U.S. agent must file Form I-129, Petition for a Nonimmigrant Worker, for the prospective foreign worker.
• DOL’s Role: The U.S. Department of Labor issues the required temporary labor certification to ensure H-2B workers won’t displace U.S. workers.

H-2B Eligibility Requirements

To be eligible for H-2B classification employers must show:

• No U.S. Workforce: Employers must demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work. This includes:
  • Recruitment efforts: Employers must undertake recruitment efforts to find U.S. workers before filing an H-2B petition.
  • Employers may need to place a job order with the state workforce agency as part of demonstrating their efforts to recruit U.S. workers.
  • Advertising: Employers must advertise the job in appropriate media to reach potential U.S. workers.

No U.S. Workforce:

• U.S. workers are not available, not willing or not qualified for the job.

No Adverse Effects on U.S. Workers:

• Employing H-2B workers must not negatively impact the wages and working conditions of similarly employed U.S. workers.

Temporary Need:

Employers must show their need for foreign workers is temporary even if the job itself is not.

Types of Temporary Need:

1. One-Time Occurrence:

• The employer needs workers for a one-time event and has not needed workers for this job before.
• The job arises from a temporary event and there is no future need.

2. Seasonal Need:

• Work is tied to a specific season or pattern that repeats annually, like summer tourism or winter snow removal.
• Seasonal need does not apply if the periods without need are unpredictable, variable or due to vacation time.

3. Peak Load Need:

• The employer has a year-round workforce but needs additional workers for short-term, seasonal surges in demand.
• Temporary staff under this need will not become part of the employer’s permanent workforce.

4. Intermittent

• The employer needs workers on a short-term basis without a recurring need.
• This is for roles that are needed sporadically throughout the year.

---

---

H-2B Application Process

Apply for Temporary Labor Certification: Temporary Labor Certification

• The employer submits a temporary labor certification request to the DOL (or Guam DOL if employment is in Guam) before filing for H-2B status.
• This certification states that hiring H-2B workers will not harm U.S. workers.

File Form I-129 with USCIS:

• After the certification is received the employer files Form I-129 with USCIS including a copy of the temporary labor certification and any required documents.
• If the DOL uses the FLAG system for certification a printed copy of the final electronic “determination” is required with Form I-129.

Worker Visa Application:

• Once Form I-129 is approved foreign workers outside the U.S. apply for an H-2B visa at a U.S. Embassy or Consulate and enter the U.S. at a port of entry.
• In some cases workers may be admitted without a visa if they apply directly at a U.S. port of entry.

---

Report H-2B Fraud and Abuse

• Who Can Report: Anyone, including U.S. citizens, employers and H-2B workers can report fraud or abuse.
• Reporting Form: Use USCIS’s online Tip Form to report fraudulent or abusive practices.

---

---

Required Documentation

To apply for an H-2B visa, employers must submit a comprehensive set of documents to ensure compliance with U.S. Citizenship and Immigration Services (USCIS) and Department of Labor (DOL) requirements. Here’s a detailed list of the necessary documentation:

1. ETA Form 9142B: This is the Application for Temporary Labor Certification, which must be filed with the Department of Labor. It certifies that hiring foreign workers will not negatively impact U.S. workers.
2. Job Order: A detailed description of the job, including duties, wages, and working conditions. This helps in the temporary employment certification process.
3. Prevailing Wage Determination: Obtained from the National Prevailing Wage Center, this document ensures that the wages offered to foreign workers are in line with the prevailing wages for the occupation and location.
4. Proof of Business Registration: Documentation such as articles of incorporation or a business license to show that the employer is a legitimate business entity.
5. Proof of Financial Ability: Evidence that the employer can financially support the wages and benefits offered to the foreign worker.
6. Proof of Ability to Provide Housing: If applicable, documentation showing that the employer can provide housing for the foreign worker.
7. Proof of Ability to Provide Transportation: If applicable, evidence that the employer can provide transportation for the foreign worker.
8. Proof of Ability to Provide Medical Insurance: If applicable, documentation showing that the employer can provide medical insurance for the foreign worker.
9. Proof of Ability to Provide Other Benefits: If applicable, evidence that the employer can provide other benefits, such as workers’ compensation.

These documents are crucial for the whole temporary worker and labor certification process and ensure that the hiring of foreign workers complies with all regulatory requirements.

H-2B Visa Occupations

The H-2B visa program is designed to fill temporary nonagricultural jobs in various industries where U.S. workers are not available. Here are some common occupations that utilize the H-2B visa:

1. Food Service Workers: Positions in restaurants, hotels, and other food service establishments, including cooks, servers, and kitchen staff.
2. Hotel and Hospitality Workers: Roles in hotels, resorts, and other hospitality establishments, such as housekeepers, front desk clerks, and maintenance staff.
3. Construction Workers: Jobs in the construction industry, including carpenters, electricians, plumbers, and general laborers.
4. Landscaping and Groundskeeping Workers: Positions in landscaping and groundskeeping, including gardeners, groundskeepers, and lawn care specialists.
5. Retail Workers: Roles in retail establishments, such as sales associates, cashiers, and stock clerks.
6. Warehouse Workers: Jobs in warehouses, including stock clerks, material handlers, and forklift operators.
7. Manufacturing Workers: Positions in manufacturing, including assembly line workers, machine operators, and quality control inspectors.
8. Sports and Athletics Workers: Roles in sports and athletics, including coaches, trainers, and referees.

These occupations highlight the diverse opportunities available for foreign workers under the H-2B visa program, addressing seasonal or peak-load needs in various industries.

Qualifications for H-2B Visa Applicants

To qualify for an H-2B visa, foreign workers must meet specific criteria to ensure they are suitable for the temporary nonagricultural positions offered by U.S. employers. Here are the key qualifications:

1. Be a Citizen of an Eligible Country: The foreign worker must be a citizen of a country that is eligible to participate in the H-2B visa program, as designated by the U.S. Department of Homeland Security.
2. Have a Job Offer: The foreign worker must have a valid job offer from a U.S. employer that has been approved by the Department of Labor through the temporary labor certification process.
3. Meet the Job Requirements: The foreign worker must meet the specific requirements of the job, including necessary education, experience, and skills as outlined by the employer.
4. Be Admissible to the United States: The foreign worker must be admissible under U.S. immigration law, meaning they must not have any grounds of inadmissibility, such as criminal history or previous immigration violations.

These qualifications and intended employment ensure that foreign workers are appropriately matched to the job opportunities available under the H-2B visa program.

Immigration Services and Fees

The H-2B visa program involves several immigration services and associated fees that employers and foreign workers need to be aware of. Here’s a breakdown of the key fees:

1. Filing Fee for ETA Form 9142B: Employers must pay a fee ranging from $100 to $300 when submitting the Application for Temporary Labor Certification to the Department of Labor.
2. Filing Fee for Form I-129: A fee of $460 is required when filing Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).
3. Premium Processing Fee: For expedited processing of the application, employers can opt for premium processing, which costs $1,410.
4. Immigration Attorney Fees: Employers may also incur fees for hiring immigration attorneys to assist with the application process. These fees can vary based on the complexity of the case and the attorney’s experience.

Understanding these fees is crucial for employers seeking to hire foreign workers under the H-2B visa program, ensuring they budget appropriately for the application process.

Processing Times and Ongoing Requirements

The processing times for H-2B visa applications can vary based on the workload of the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS). Here are some general guidelines:

1. Processing Time for ETA Form 9142B: Typically, it takes 30 to 60 days for the DOL to process the Application for Temporary Labor Certification.
2. Processing Time for Form I-129: USCIS generally processes Form I-129 within 15 to 30 days, though this can vary.
3. Ongoing Requirements: Employers must comply with ongoing requirements, such as reporting any changes in the foreign worker’s employment status to USCIS and providing necessary documentation as required.

These processing times and ongoing requirements highlight the importance of timely and accurate submissions to ensure a smooth application process. Employers and prospective workers are advised to consult with an immigration attorney to ensure full compliance with all requirements.

By following these guidelines, employers can effectively navigate the H-2B visa application process, ensuring they meet all necessary criteria and deadlines.

H-2B Duration of Stay and Extensions

• Initial Period: H-2B status is for the period on the labor certification.
• Extensions: Extensions are one year increments, up to 3 years.
• Reapplication Rule: After 3 years workers must leave the U.S. for at least 3 months before reapplying for H-2B status.

---

Family of H-2B Workers

Spouses and children under 21 can join H-2B workers on H-4 status, but they cannot work in the U.S. on H-4 status.

---

Employer Responsibilities: Notifications to USCIS

Employers must notify USCIS within 2 business days if:

• No Show: The worker does not show up to work within 5 days of the start date.
• Abscondment: The worker leaves without notice for 5 consecutive days.
• Termination: The worker is terminated before completing their contract.
• Early Completion: The worker finishes work more than 30 days before the end of the contract.
• Compliance: Ensure compliance with employment standards and worker protections as enforced by the Wage and Hour Division.

Notify the USCIS Service Center where the petition was processed, preferably by email for faster processing.

Fee-Related Notifications

Employers must also notify if they become aware of any worker paying fees to agents, facilitators or recruiters as a condition of employment which is prohibited. This notification must be sent within 2 business days of discovering the payment.

---

H-2B Petitions Not Subject to Temporary Need

• Under the National Defense Authorization Act (NDAA) certain H-2B positions in Guam and the Northern Mariana Islands are not subject to the temporary need requirement if they meet NDAA criteria, mainly to support local labor needs in these U.S. territories.

More information:

• H-2B Temporary Non-Agricultural Workers
• Foreign Labor Certification (DOL)

Full List of Nationalities for the H-2B Program (Nov 9, 2023)

The following countries are designated by the U.S. Department of Homeland Security (DHS) as eligible for the H-2B program. Nationals from these countries can participate in the program,

Africa

• Madagascar
• Mauritius
• Mozambique
• South Africa

Americas

• Argentina
• Barbados
• Bolivia
• Brazil
• Canada
• Chile
• Colombia
• Costa Rica
• Dominican Republic
• Ecuador
• El Salvador
• Guatemala
• Haiti
• Honduras
• Jamaica
• Mexico
• Nicaragua
• Panama
• Peru
• Saint Lucia
• St. Vincent and the Grenadines
• Uruguay

Asia-Pacific

• Australia
• Fiji
• Japan
• Kiribati
• Mongolia
• Nauru
• New Zealand
• Papua New Guinea
• Philippines
• Solomon Islands
• South Korea
• Taiwan*
• Thailand
• Timor-Leste
• Tuvalu
• Vanuatu

Europe

• Andorra
• Austria
• Belgium
• Bosnia and Herzegovina
• Bulgaria
• Croatia
• Czech Republic
• Denmark
• Estonia
• Finland
• France
• Germany
• Greece
• Hungary
• Iceland
• Ireland
• Italy
• Kosovo
• Latvia
• Liechtenstein
• Lithuania
• Luxembourg
• Malta
• Moldova
• Monaco
• Montenegro
• Netherlands
• North Macedonia
• Norway
• Poland
• Portugal
• Romania
• San Marino
• Serbia
• Slovakia
• Slovenia
• Spain
• Sweden
• Switzerland
• Turkey
• United Kingdom

---

Special Note on Taiwan: According to the Taiwan Relations Act of 1979, all references to “country” or “countries” include Taiwan, consistent with the United States’ one-China policy, under which the U.S. has maintained unofficial relations with Taiwan since 1979.

---

Hiring Workers from Non-Eligible Countries

In some cases a U.S. employer can hire workers from countries not on the list. To do this the employer must demonstrate that hiring a worker from a non-eligible country serves a U.S. interest. DHS will review these requests on a case by case basis and may approve them if they meet specific criteria. Here’s how this works:

1. Submit a Justification Request: Employers should submit a detailed explanation to DHS or the U.S. Department of State (DOS) as to why hiring a worker from a non-eligible country is in the U.S. interest.
2. Factors to be Considered: DHS, with DOS concurrence, will consider the following when determining U.S. interest:

• The home country’s cooperation with the U.S. on issuing travel documents for its nationals.
• The number of finalized but unexecuted removal orders against nationals from that country.
• Whether the exception aligns with U.S. immigration and foreign policy objectives.

3. Request Submission: Employers may submit requests to DHS’s Office of Policy or to the Department of State at a U.S. Embassy or Consulate.

Separate Petitions for Mixed Countries: If hiring both eligible and non-eligible country nationals, USCIS recommends filing separate petitions to avoid processing delays

H-2B Fraud and Abuse Reporting

USCIS encourages anyone—U.S. citizens, H-2B workers, or employers—to report H-2B fraud or abuse. This can be tips, allegations or information about possible violations within the program. Report through the online USCIS Tip Form.

---

H-2B Visa FAQs

The H-2B visa allows U.S. employers to temporarily hire foreign nationals for non-agricultural positions. Here is a list of questions, common and not so common, from eligibility and application process to exemptions, extensions and requirements for specific job roles.

1. What is the H-2B visa and who is it for?

• Answer: The H-2B visa is for foreign nationals filling temporary non-agricultural jobs in the U.S. when U.S. workers are not available. It’s used by industries like hospitality, landscaping, construction and food processing for seasonal or peak load needs.

2. What is a “temporary” need for H-2B visas?

• Answer: Temporary need is defined by four types:
• One-Time Occurrence: A short-term, non-recurring need.
• Seasonal Need: Work tied to a particular season each year, like summer tourism.
• Peak Load Need: Temporary staff added to support high-demand periods.
• Intermittent Need: Work that is irregular or unpredictable in timing.

3. How many H-2B visas are there each year?

• Answer: 66,000 annual cap, 33,000 for each half of the fiscal year (October-March and April-September). Additional visas may be added for labor shortages.

4. Who can apply for H-2B status?

• Answer: U.S. employers and authorized agents who meet the regulatory requirements can apply on behalf of foreign nationals as long as they can show there are not enough U.S. workers to fill the positions and that hiring foreign nationals won’t affect U.S. worker wages or working conditions.

5. What are the qualifications for H-2B workers?

• Answer: Foreign nationals are qualified for H-2B status if:
• The job is temporary.
• No adverse immigration history.
• They meet the job requirements of the employer.

6. How do U.S. employers start the H-2B application process?

• Answer: Employers first submit a Temporary Labor Certification application to the U.S. Department of Labor (DOL) to prove the need for foreign workers. After certification they file Form I-129 with USCIS to petition for the workers.

7. What supporting documents do employers need to submit with Form I-129?

• Answer: Employers must include:
• The original or a copy of the Temporary Labor Certification.
• Proof of the employer’s temporary need.
• Supporting documentation, like a description of the seasonal or peak load period.

8. Can an H-2B visa be extended?

• Answer: Yes, H-2B visas can be extended in one-year increments for up to three years. After three years the worker must leave the U.S. for at least three months before applying for a new H-2B visa.

9. What if the annual H-2B cap is reached?

• Answer: When the cap is reached USCIS will stop accepting new cap-subject petitions but will continue to process cap-exempt petitions. Employers can wait until the next fiscal year opens for new visas.

10. Are there H-2B caps?

• Answer: Yes, exemptions apply to:
• Workers extending their stay, changing employers or modifying job terms in the U.S.
• Workers in Guam or the Commonwealth of the Northern Mariana Islands.
• Fish roe processors, technicians and supervisors.
• Family members (H-4 visas) of H-2B workers.

11. How do employers hire from a country not on the H-2B eligible list?

• Answer: Employers can request a waiver if they can prove it’s in the U.S. interest. DHS will evaluate these requests based on U.S. immigration and labor needs.

12. Can H-2B workers bring family?

• Answer: Yes, H-2B workers can bring spouses and unmarried children under 21 under H-4 status. H-4 visa holders cannot work in the U.S.

13. How long can H-2B workers stay in the U.S.?

• Answer: H-2B workers can stay for up to one year initially, with extensions up to three years. After three years they must leave the U.S. for at least three months before applying for H-2B again.

14. What are the fees for an H-2B visa?

• Answer: Employers pay for the Temporary Labor Certification and Form I-129 filing fee. Workers may also pay visa fees at a U.S. consulate. But workers cannot pay fees to recruiters or agents.

15. What are the employer’s notification requirements?

• Answer: Employers must notify USCIS within two business days if the worker:
• Doesn’t show up to work.
• Leaves without notice.
• Is terminated.
• Finishes work more than 30 days early.

16. Do H-2B workers have to stay with the same employer?

• Answer: No, H-2B workers can change employers if the new employer files a new Form I-129 for them. This allows for flexibility if job terms change.

17. Can H-2B workers switch between H-2A (agricultural) and H-2B?

• Answer: Yes, but a new petition must be filed to change from one visa classification to another as each program serves different industries and types of employment needs.

18. Which industries use H-2B visas?

• Answer: Common industries:
• Hospitality: Hotels, resorts and recreational facilities.
• Landscaping: Gardeners, groundskeepers and seasonal labor.
• Construction: Project-based construction, including seasonal repairs.
• Food Processing: Seafood and meat processing during peak seasons.

19. What are the penalties for H-2B violations or fraud?

• Answer: Violations, including fraud can result in:
• Revocation of the visa.
• Fines and sanctions for employers.
• Ban on future H-2B applications.

20. How do employers report H-2B fraud or abuse?

• Answer: Employers and employees can report fraud or abuse through the USCIS online Tip Form.

21. Are H-2B visas transferable to other visa categories?

• Answer: H-2B visas are not transferable, but workers can apply for other visas if they qualify. This usually requires a new petition or application.

22. Can H-2B workers apply for permanent residency?

• Answer: H-2B visas are for temporary work only and are not designed for permanent residency. However, some workers may apply for other visas or green cards if they qualify.

23. What if the H-2B worker’s employment is terminated early?

• Answer: Employer must notify USCIS within two business days and the worker must leave the U.S. unless they find a new H-2B job with a different employer who files Form I-129 for them.

24. Can an H-2B worker change job within the same company?

• Answer: Yes, but employer must notify USCIS of any significant changes to the worker’s job description, terms or conditions. A new labor certification may be required.

25. What do employers need to know about H-2B eligible countries?

• Answer: Each year DHS publishes a list of eligible countries. Nationals from non-listed countries can only participate if an employer can demonstrate that their employment is in the U.S. interest which requires additional documentation and DHS approval.

26. What determines which countries are on the H-2B eligible list?

• Answer: DHS with input from DOS considers factors such as cooperation with immigration enforcement, historical visa compliance rates and broader U.S. interests. Country eligibility is reviewed and updated annually.

27. Where should I file my labor certification application?

• Answer: You should file your labor certification application with the Chicago National Processing Center, either electronically through the FLAG system or via mail.

Summary

The H-2B cap for the first half of fiscal year 2025 has been met. Additional petitions will only be accepted if they meet exemption criteria. For employers and H-2B visa applicants, the cap reset will give another chance to apply for visas for the second half of the fiscal year, starting April 1, 2025.

Check the USCIS Cap Count for H-2B Nonimmigrants page for updates on H-2B visa availability, requirements and program changes.