H-2B Visa Labor Certification Process

Frequently Asked H-2B Visa Questions

What are the core eligibility requirements for a U.S. company to use the H-2B program?

The H-2B nonimmigrant program allows U.S. employers to hire foreign nationals for temporary, non-agricultural jobs. The core requirement is proving a temporary need that is a one-time occurrence, seasonal, peak-load, or intermittent. Employers must first apply for and receive a temporary labor certification from the Department of Labor (DOL). This certification attests that there are not enough qualified, available U.S. workers for the job. Additionally, the employment of H-2B workers must not adversely affect the wages or working conditions of similarly employed U.S. workers. Employers must offer and pay a wage that is the highest of the prevailing wage, Federal, State, or local minimum wage. The company must guarantee the foreign worker employment for a total number of hours equal to at least 75% of the workdays in each 12-week period. Following DOL certification, the employer must then file a petition with U.S. Citizenship and Immigration Services (USCIS). Successful adherence to these federal steps, from demonstrating temporary need to ensuring worker protections, is essential for program participation.

How do you determine if your company's need for workers is considered "temporary" under the H-2B program?

Under the H-2B non-agricultural temporary worker program, your company's need must fit into one of four specific definitions of "temporary need." These four categories are: one-time occurrence, seasonal need, peak load need, or intermittent need. A seasonal need is traditionally tied to a recurring event or pattern tied to a season of the year. Peak load need is when you regularly employ permanent workers but need a temporary supplement to your staff due to a seasonal or short-term demand. An intermittent need applies if you do not employ permanent staff for the duties and only occasionally require temporary workers for short periods. A one-time occurrence is an otherwise permanent employment situation where a temporary event of short duration has created the need for temporary workers. Generally, the maximum period for a temporary need is one year or less, with an exception allowing a one-time occurrence to last up to three years. The burden is on the employer to demonstrate and document this temporary nature to the Department of Labor (DOL). Establishing one of these temporary needs is the essential first step in the H-2B application and labor certification process.

Can you explain the difference between a seasonal need, a peak-load need, and a one-time occurrence in the context of the H-2B visa?

The H-2B visa program requires employers to prove their need for temporary non-agricultural workers falls into one of four categories. A seasonal need is tied to a traditional season or event, recurs annually, and requires the employer to show a period of time each year when the work is not needed. A peak-load need occurs when an employer already has a permanent staff but must temporarily supplement that staff due to a seasonal or short-term increase in demand. Crucially, peak-load workers must not become part of the employer's regular, year-round operation. Finally, a one-time occurrence is for a need that has never happened before and will likely not occur again, or for a temporary event affecting an otherwise permanent employment situation. Unlike seasonal or peak-load needs, which are typically capped at one year, a one-time occurrence may justify a temporary need for up to three years. All categories require the employer to demonstrate that the temporary need will end in the near, definable future. Selecting the correct category is a critical first step in the H-2B application process. Misclassifying the temporary need can lead to a denial by the Department of Labor.

How is it assessed if there's a lack of available U.S. workers for your open positions?

Our assessment process is rigorously defined by federal law for the H-2B temporary non-agricultural visa program. To start, an employer must apply to the U.S. Department of Labor (DOL) for a Temporary Labor Certification (TLC). This certification is the official determination that sufficient U.S. workers are not "able, willing, qualified, and available" for the temporary positions. The employer is legally required to conduct extensive, documented recruitment efforts in the local labor market. This mandatory recruitment includes placing a job order with the State Workforce Agency (SWA) and running newspaper advertisements. We must actively interview and consider all U.S. applicants referred to us, rejecting them only for lawful, job-related reasons. The entire recruitment process must be thoroughly documented in a formal recruitment report submitted to the DOL's Certifying Officer. Only after the DOL reviews this evidence and approves the TLC can we file a petition to hire foreign guest workers. This multi-step process ensures American workers are given priority for all open positions.

What is the H-2B visa cap, and how does it impact your application timeline and chances of success?

The H-2B visa program is subject to a statutory annual numerical limit, or "cap," currently set at 66,000 visas per fiscal year by Congress. This cap is divided into two halves, with 33,000 available for employment starting in the first half (October 1–March 31) and 33,000 for the second half (April 1–September 30). High demand means both halves of the cap are often reached quickly, causing an application "race" or what can become a de facto lottery system. Consequently, the cap severely impacts the application timeline, forcing employers to file for the Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) as early as legally possible. If the USCIS receives enough petitions to meet the cap on a single "final receipt date," a random selection process determines which petitions are accepted. This intense demand and limited supply significantly reduce an employer's overall chance of success, especially for the popular second-half filing period. Therefore, an early and precise application is critical, and a cap-subject petition filed too late in the cycle will be rejected. Certain workers, such as those extending their stay or in specific industries, are exempt from the cap, offering an alternative pathway.

How do we handle the fluctuating cap numbers and supplemental visa releases?

The statutory H-2B cap is fixed at 66,000 annually, split evenly for the first and second half of the fiscal year. Because demand often exceeds this number, the Department of Homeland Security (DHS) frequently releases temporary supplemental visa numbers in consultation with the Department of Labor (DOL). These supplemental visas are typically allocated for certain groups, such as returning workers or nationals of specific Northern Triangle countries. To qualify for supplemental visas, employers must generally attest that their business will suffer irreparable harm without the H-2B workers. Supplemental visa numbers are usually divided into tranches throughout the fiscal year based on employment start dates. Employers must monitor official announcements from USCIS and DOL for filing dates and specific worker eligibility criteria for each new supplemental release. Given the high demand, employers must file their ETA-9142B applications with the DOL promptly, as a lottery system is often used to process petitions. For the best chance of success, develop a contingency plan that accounts for the possibility of not receiving all requested workers.

Which countries are eligible for the H-2B program, and does this change?

The H-2B program is primarily open to nationals of countries designated by the Department of Homeland Security (DHS) in consultation with the Department of State. The official list includes over 80 countries worldwide, such as Mexico, Canada, the Philippines, the United Kingdom, and many others. This designation simplifies the petition process for U.S. employers seeking temporary non-agricultural workers. The full list is not permanent and is reviewed and updated annually, typically published as a Federal Register Notice each November. The current list, for example, is effective from November 2024 through November 2025. Countries can be added or removed based on factors like cooperation with U.S. immigration laws, visa fraud rates, and overstay violations. However, even if a foreign national is not from an eligible country, their U.S. employer may request an exception. This case-by-case approval is only granted if the DHS determines it is in the interest of the United States. Employers should always consult the most recent Federal Register notice for the current and official list of H-2B eligible countries.

How long can workers stay in the U.S. on an H-2B visa?

The initial H-2B visa is granted for up to one year, aligning with the period specified on the employer's certified temporary labor need. The worker's stay can be extended in increments of up to one year at a time. The overall maximum period of continuous stay in H-2B status is generally three years. To receive an extension, the employer must file a new labor certification and Form I-129 petition. This process must demonstrate that the job and the employer's need are still temporary in nature. Once the three-year maximum limit is reached, the worker must leave the U.S. and remain outside the country. A departure period of at least 60 days is required to reset the three-year clock. After this time outside the U.S., the worker is eligible to seek readmission in H-2B status for a new temporary employment period. Time spent in other H or L visa classifications may also count toward the three-year limit. This visa is strictly for temporary work and does not offer a direct path to a Green Card or permanent residency.

Is your company required to provide housing for H-2B workers?

No, under federal H-2B regulations, employers are generally not required to provide housing for temporary non-agricultural workers. This differs from the H-2A program for agricultural workers, which has a mandatory housing requirement. However, an H-2B employer is responsible for providing or reimbursing the worker for inbound transportation and subsistence, including lodging expenses incurred on their behalf, to the place of employment. This reimbursement occurs upon the completion of 50 percent of the job contract period. If an employer chooses to offer housing, that housing must meet all applicable local, state, and federal standards for health and safety. The employer must also clearly disclose all terms regarding any provided housing, including any permissible deductions from the worker's pay for its cost, in the job order. Furthermore, if an H-2B worker is dismissed early or completes the job order, the employer must provide or pay for return transportation and subsistence, which would include lodging, to the worker's home country. Therefore, while housing is not a general mandate, providing safe and compliant accommodations is a best practice.

What are the specific wage requirements we must meet for H-2B workers?

Employers must pay H-2B workers and corresponding U.S. workers at least the wage rate specified in the approved job order. This offered wage must be the highest of four potential rates, including the prevailing wage. The four required comparison rates are the prevailing wage, the Federal minimum wage, the State minimum wage, or the local minimum wage. To determine the correct rate, employers must first obtain a Prevailing Wage Determination (PWD) from the Department of Labor's National Prevailing Wage Center. The PWD is typically based on the arithmetic mean of wages for similarly employed workers in the area of intended employment. Wages must be paid "free and clear" without unauthorized deductions that would reduce the pay below the required rate. If paying by commission, piece-rate, or bonus, you must guarantee that the worker's weekly earnings meet or exceed the offered hourly wage. Payment must be made at least every two weeks or according to the prevailing practice for the occupation, whichever is more frequent. Additionally, H-2B workers are subject to other federal wage laws, such as the overtime provisions of the Fair Labor Standards Act.

How do you help us determine the prevailing wage for the jobs we're hiring for?

The first and most crucial step in the H-2B process is obtaining a Prevailing Wage Determination (PWD) from the Department of Labor (DOL). We begin by preparing and submitting the mandatory Form ETA-9141, the Application for Prevailing Wage Determination, to the National Prevailing Wage Center (NPWC). This application includes a comprehensive description of the job duties and the area of intended employment for the temporary position. The NPWC then analyzes this information to assign the appropriate wage, which is typically the arithmetic mean wage for that occupation and location. Once issued, the PWD dictates the minimum wage you must offer and pay to both H-2B and U.S. workers. Critically, the law requires you to pay the highest of the prevailing wage, the federal, state, or local minimum wage, or the wage in a collective bargaining agreement. We advise filing this form at least 60 calendar days before it is needed for the rest of the application process. We ensure all required information is accurate to receive an appropriate and timely wage determination to support your recruitment efforts.

What are the legal requirements regarding transportation costs for H-2B workers?

H-2B employers are legally responsible for the costs of both inbound and outbound transportation and daily travel subsistence for their workers. The inbound travel and subsistence expenses from the place of recruitment to the worksite must be reimbursed no later than when the worker completes 50 percent of the job order period. The employer is only required to pay for the most economical and reasonable means of transportation. This obligation also covers daily subsistence during travel, including meals and lodging where necessary. Current minimum and maximum daily subsistence reimbursement rates apply, with a higher rate available if the worker provides receipts. For outbound travel, the employer must provide or pay for return transportation and daily subsistence if the worker completes the contract or is dismissed early for any reason. The employer is relieved of the return travel obligation if the worker abandons the job or immediately goes to another certified H-2B employer who assumes the costs. Employers must maintain thorough documentation of all payments and reimbursements made to the H-2B workers. This requirement also extends to corresponding U.S. workers who are recruited from outside the normal commuting distance.

Can we hire H-2B workers for jobs that require specific skills or experience, or is the program only for unskilled labor?

The H-2B visa program can be used for both skilled and unskilled non-agricultural positions. The key factor is not the skill level of the job, but rather the temporary nature of the employer's need. For example, a temporary need could be a seasonal spike in demand or a one-time project. While H-2B is often associated with lower-skilled jobs like landscaping and hospitality, it can apply to almost any temporary occupation. The employer must define the minimum job requirements, including any necessary skills or experience. The H-2B applicant must then demonstrate that they meet those specific qualifications for the temporary position. However, it is important to note that the H-2B is generally not for professional positions requiring a U.S. bachelor's degree or its equivalent, as those typically fall under the H-1B category. Essentially, as long as your need is temporary and non-agricultural, you can require specific skills for the job.

What industries do you specialize in, and do you have experience with our specific industry?

We specialize in H-2B visa petitions for industries with temporary, non-agricultural labor needs. Our core areas of expertise include the major H-2B user sectors like landscaping and groundskeeping, which consistently require the highest number of certifications. We also have extensive experience navigating the seasonal demands of the hospitality and tourism industries, including hotels and resorts. Additionally, our firm is highly proficient in the complex H-2B requirements for construction, forestry, and seafood processing. While these are the most common sectors, our expertise extends to all industries with a proven seasonal, peak load, or intermittent need. To determine our exact experience with your specific industry and occupation, please contact us for a detailed consultation. We can review your unique temporary labor needs to confirm a perfect alignment with the H-2B program requirements.

Do you handle both new applications and the rehiring of returning H-2B workers?

Yes, we expertly manage the entire H-2B process for both new applications and the rehiring of returning workers. The standard annual cap for H-2B visas is 66,000, which new workers are subject to. However, the current law includes a provision for supplemental H-2B visas, with a significant portion specifically allocated for returning workers. A "returning worker" is generally an individual who held H-2B status or was issued an H-2B visa in one of the past three fiscal years. Petitioning for returning workers is advantageous as it often falls under this supplemental allocation, providing an opportunity for employers to secure their needed labor even after the statutory cap is reached. Furthermore, a key difference is that employers seeking to rehire workers must solicit the return of their former U.S. workers from the previous year. We assist with all the necessary filings, from the Department of Labor's Temporary Labor Certification (TLC) to the USCIS Form I-129 petition. Our services ensure all requirements, attestations, and deadlines are met for both first-time and returning H-2B foreign nationals.

How does the H-2B program differ from the H-2A program, and why is H-2B the right choice for our nonagricultural needs?

The H-2B and H-2A programs are distinct visas for temporary foreign workers. The key difference is that the H-2A visa is exclusively for temporary or seasonal agricultural labor. Conversely, the H-2B visa is specifically designed for all other temporary non-agricultural work, which covers industries like hospitality, landscaping, construction, and manufacturing. Your company's need for non-agricultural roles—such as those in food processing or resort services—makes H-2B the only appropriate legal pathway. Although H-2B is subject to an annual statutory cap of 66,000 visas, split between two halves of the fiscal year, supplemental visas are often made available. This visa is the right choice because it provides the necessary workforce flexibility to meet your short-term, seasonal, peak-load, or intermittent non-agricultural labor demands. Employers must demonstrate they have a temporary need and that insufficient U.S. workers are available to fill these roles. Ultimately, the H-2B program is the tailored solution for your temporary non-agricultural workforce needs.