The H-2B visa is a US nonimmigrant category that enables employers to hire foreign nationals for short-term, non-agricultural work when there are not enough available and qualified US workers. It is widely relied upon in sectors such as hospitality, construction, landscaping, recreation, seafood processing, amusement, and cleaning services, where seasonal or peak demand creates staffing shortages.
What this article is about: This guide sets out how the H-2B program operates for both employers and workers. It explains eligibility requirements, temporary-need categories, the multi-stage application process (DOL labor certification, USCIS petition, and consular processing), the annual cap and supplemental allocations, visa validity, extensions, worker protections, employer duties, family eligibility, compliance duties, and the consequences of violations.
The program is strictly regulated. Employers must prove a genuine short-term need and comply with obligations designed to protect US workers’ wages and conditions. Workers, in turn, must comply with status conditions and are entitled to defined protections under US labor law. Understanding the rules and compliance requirements is critical to lawful use of the H-2B program.
Section A: Overview of the H-2B Visa
The H-2B visa was introduced to address shortages in non-agricultural industries when US employers cannot recruit sufficient domestic labor. It provides a lawful means to meet seasonal, peak load, intermittent, or one-time staffing requirements while safeguarding the domestic workforce. Unlike immigrant visas, the H-2B classification is temporary and tied to the specific employer that filed the petition.
1. Purpose and scope of the H-2B visa
The H-2B allows US businesses to employ foreign nationals in temporary, non-agricultural roles. It is not intended for ongoing or permanent positions but instead for defined, time-limited needs such as resort work during tourist season, holiday peaks, or one-off projects. Employment is limited to the duties approved in the petition, and workers must leave the US once their authorised stay ends unless a valid extension is granted.
2. Distinction between H-2A and H-2B visas
The H-2 program is divided into agricultural (H-2A) and non-agricultural (H-2B) categories. H-2A applies to temporary farm work such as planting and harvesting, while H-2B applies to roles in hospitality, construction, landscaping, seafood processing, and recreation. Each stream addresses distinct workforce needs with separate regulatory requirements.
3. Temporary need requirement
Employers must show that their labor need is genuinely temporary. US immigration law recognises four categories of temporary need:
- Seasonal need – linked to a recurring seasonal pattern or event such as summer tourism.
- Peak load need – when a business needs extra staff during surges in demand.
- Intermittent need – for occasional, irregular requirements when permanent staff are not typically employed.
- One-time occurrence – a unique, short-term situation not expected to recur.
The Department of Labor carefully reviews these claims at the labor certification stage to prevent employers from using the H-2B program to fill permanent positions.
Section A Summary: The H-2B program provides a regulated pathway for non-agricultural employers to meet temporary staffing shortages. Employers must prove the job falls within one of the recognised temporary-need categories and cannot rely on the program to cover permanent labor requirements.
Section B: Eligibility Criteria
Both the US employer and the foreign worker must satisfy strict eligibility requirements under the H-2B visa program. These rules ensure the route is used appropriately and does not harm the domestic workforce.
1. Employer eligibility
To sponsor H-2B workers, a US employer must demonstrate that its need for labor is temporary and falls into one of the recognised categories: seasonal, peak load, intermittent, or one-time occurrence. A key requirement is obtaining a Temporary Labor Certification from the Department of Labor (DOL). This process involves:
- Providing evidence that there are not enough US workers who are able, willing, qualified, and available to perform the work.
- Showing that hiring foreign nationals will not negatively affect the wages and working conditions of similarly employed US workers.
- Confirming that the need is genuinely temporary and not intended to fill a permanent role.
- Carrying out required recruitment efforts in the US, including job postings through the State Workforce Agency and advertising to reach local candidates.
Employers must also comply with wage requirements, cover transportation and subsistence costs as required by law, and ensure that no recruitment or placement fees are charged to workers. Specifically, employers are responsible for reimbursing inbound travel and subsistence once a worker completes 50% of the contract and for paying return travel if the worker completes the contract or is dismissed early. These obligations are closely monitored by both DOL and USCIS.
2. Worker eligibility
Foreign nationals may qualify for H-2B status if they have a valid job offer from a US employer that has secured both a Temporary Labor Certification and an approved petition. Additional worker requirements include:
- Citizenship of a country on the Department of Homeland Security’s list of H-2B eligible nations, published annually in the Federal Register. Workers from non-listed countries may only participate if DHS determines it to be in the US interest.
- Admissibility under US immigration law, with no disqualifying criminal convictions or immigration violations.
Workers must leave the United States at the end of their authorised stay unless they are granted a lawful extension. Remaining beyond the permitted period can result in removal and future bars to entry.
3. Types of roles covered under H-2B
The H-2B program supports a wide range of industries that face short-term or seasonal workforce shortages. Common examples include:
- Landscaping and groundskeeping
- Hospitality and resort operations
- Amusement and recreational parks
- Construction and related trades
- Seafood and meat processing
- Housekeeping and cleaning services
Section B Summary: H-2B eligibility requires compliance from both employers and workers. Employers must prove temporary need, conduct required US recruitment, and uphold wage and cost obligations. Workers must be from eligible countries, be admissible to the US, and comply with visa terms throughout their stay.
Section C: Application Process
The H-2B process is employer-driven and involves multiple government agencies. Workers cannot apply independently; they may only proceed once their prospective employer has obtained the necessary approvals.
1. Employer process
The employer must first secure a Temporary Labor Certification from the Department of Labor (DOL). This requires:
- Filing a job order with the State Workforce Agency (SWA) to recruit US workers.
- Submitting the labor certification application to DOL with evidence of the temporary nature of the work and compliance with prevailing wage rules.
- Carrying out mandatory recruitment steps, including advertising locally, to prove good-faith efforts to hire US workers.
Once certification is granted, the employer then files Form I-129 (Petition for a Nonimmigrant Worker) with US Citizenship and Immigration Services (USCIS). If approved, the petition is forwarded to the Department of State for the worker’s visa application at a US consulate or embassy.
2. Worker application
Once the petition is approved, the foreign worker applies for the visa. This involves:
- Completing the DS-160 online nonimmigrant visa application form.
- Booking and attending an interview at a US consulate or embassy.
- Providing required documents, including a valid passport, the job offer, and evidence of ties to their home country.
If the visa is approved, it is placed in the worker’s passport, authorising travel to the US for employment with the sponsoring employer.
3. Timeframes, costs, and validity
Processing times vary between DOL, USCIS, and the Department of State, and employers must plan recruitment and filings well in advance of seasonal or peak demand. Key points include:
- Visa validity: Typically up to one year, depending on the employer’s certified need.
- Extensions: Possible in increments of up to one year, capped at three years. After three years, the worker must depart and remain outside the US for three consecutive months before applying again.
- Costs: Employers bear most costs associated with petitions and certifications. Workers usually pay the consular application fee but cannot lawfully be charged recruitment or placement fees.
4. Cap and lottery system
The H-2B program is capped at 66,000 visas per fiscal year, divided into two halves:
- 33,000 visas for jobs starting between October 1 and March 31.
- 33,000 visas for jobs starting between April 1 and September 30.
When applications exceed available numbers, USCIS conducts a random selection (lottery). In practice, the cap is reached quickly each year. Congress or the Department of Homeland Security (DHS) may authorise supplemental H-2B visas in specific fiscal years to address shortages. Returning worker exemptions have occasionally been approved through legislation, but these are not permanent features of the program.
Section C Summary: The H-2B process involves DOL labor certification, USCIS petition approval, and Department of State visa processing. Strict caps and frequent oversubscription make early preparation and careful compliance critical for success.
Section D: Rights, Conditions, and Compliance
The H-2B program is governed by US immigration and labor law. Employers must meet detailed obligations, while workers must maintain visa status and follow the approved employment terms.
1. Worker rights under US labor laws
H-2B workers are protected under federal labor standards, including wage, safety, and anti-discrimination laws. Key rights include:
- Payment of at least the prevailing wage and the terms set out in the certified job order.
- Safe and healthy workplaces that meet Occupational Safety and Health Administration (OSHA) standards.
- Freedom from discrimination, harassment, and retaliation for reporting violations or assisting investigations.
- Access to enforcement agencies such as the Department of Labor’s Wage and Hour Division (WHD) to lodge complaints.
Workers cannot be charged recruitment or placement fees. Employers must reimburse inbound travel and subsistence costs once a worker completes 50% of the job order and must cover outbound travel and subsistence if the worker completes the contract or is terminated early.
2. Employer responsibilities
Employers participating in the H-2B program must comply with the terms of their certification and immigration reporting rules. These responsibilities include:
- Paying the required wage and providing the offered hours and working conditions.
- Fulfilling any guaranteed work obligations that apply under the H-2B regulations.
- Keeping detailed records of recruitment efforts, wages, hours, and worker departures.
- Covering lawful transportation and subsistence costs in line with DOL rules.
- Notifying USCIS promptly if a worker fails to report, absconds, or is terminated, to avoid liability.
Failure to comply can result in fines, back wage orders, petition denials, program debarment, and in serious cases, criminal penalties.
3. Extensions, changes, and portability
H-2B status may be extended in increments of up to one year, to a maximum of three years. Each extension requires a new Temporary Labor Certification and a new Form I-129 petition. After three years, the worker must leave the United States and remain abroad for at least three months before being eligible for new H-2B employment. A change of employer or change of status requires separate government approval and is reviewed carefully.
4. Status maintenance and consequences of breach
Workers must perform only the duties approved in the petition, for the named employer, and within the visa validity period. Violations—such as unauthorised work, overstaying, or breaching job terms—can result in removal and bars to reentry. Employers that fail to uphold their labor or immigration obligations face penalties and potential exclusion from the program.
Section D Summary: The H-2B program balances business flexibility with strong worker protections. Employers must uphold wage, safety, transportation, and reporting duties, while workers must follow visa conditions. Non-compliance carries serious consequences for both parties.
FAQs
What is the difference between H-2A and H-2B visas?
The H-2A program applies to temporary agricultural work such as planting or harvesting crops. The H-2B visa covers temporary non-agricultural roles, including hospitality, landscaping, construction, and recreation.
How long can I stay in the US on an H-2B visa?
The visa is granted for the duration of the employer’s certified need, typically up to one year. Extensions may be granted in one-year increments to a maximum of three years. After three years, the worker must leave the United States and remain abroad for at least three uninterrupted months before applying again.
Can H-2B workers bring dependents?
Yes. Spouses and unmarried children under 21 may apply for H-4 dependent visas. H-4 dependents can study in the US but are not permitted to work. Employment authorization rules available to some H-4 spouses of H-1B holders do not apply to H-2B dependents.
Is the H-2B visa renewable?
Extensions are possible, but each requires a new Temporary Labor Certification and a new Form I-129 petition. The maximum time permitted in H-2B status is three years, after which a three-month departure is mandatory before seeking new employment under the program.
What industries typically use the H-2B visa program?
Industries with high seasonal or peak demand, such as landscaping, hospitality, amusement parks, seafood processing, construction, and cleaning services, are the most frequent users of the H-2B program.
Conclusion
The H-2B visa provides a lawful route for US employers to address temporary workforce shortages in non-agricultural sectors. Employers must prove their need is genuinely short-term, secure labor certification, pay prevailing wages, meet transportation and subsistence obligations, and comply with reporting requirements. Workers are protected under US labor laws and may bring eligible dependents but must adhere strictly to visa conditions.
Because the program is capped and often oversubscribed, early preparation is vital. Employers and workers who understand the legal framework, timelines, and compliance obligations will be better positioned to benefit from the H-2B program while avoiding penalties and future ineligibility.
Glossary
| H-2B Visa | A US nonimmigrant visa for temporary non-agricultural workers, capped annually and tied to employer need. |
| Temporary Labor Certification | Approval from the Department of Labor confirming temporary need and lack of available US workers. |
| USCIS | US Citizenship and Immigration Services, the agency that adjudicates Form I-129 petitions. |
| DS-160 | Online nonimmigrant visa application form completed by H-2B workers before attending a consular interview. |
| Cap | The statutory annual limit of 66,000 H-2B visas, sometimes supplemented by additional allocations authorised by Congress or DHS. |
Useful Links
| USCIS – H-2B Non-Agricultural Workers | Visit USCIS |
| DOL – H-2B Foreign Labor Certification | Visit DOL |
| US Department of State – DS-160 Application | Complete DS-160 |
| NNU Immigration – H-2B Visa Guide | Visit NNU Immigration |
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
