The H-2B visa is a US nonimmigrant route that allows American employers to hire foreign nationals for temporary, non-agricultural jobs when there are not enough qualified US workers available. It is widely used in industries such as hospitality, landscaping, construction, amusement and recreation, seafood processing, and cleaning services where seasonal or peak-load demand creates short-term labor shortages.
What this article is about: This guide explains how the H-2B program works for employers and workers. It covers eligibility and temporary-need categories, the step-by-step application process (DOL temporary labor certification, USCIS petition, and consular stage), the annual cap and FY-specific supplemental allocations, visa validity and extensions, worker protections and employer duties (including transportation, subsistence, and fee restrictions), family dependants, notifications, and consequences of non-compliance.
The program is tightly regulated. Employers must prove a genuine temporary need and safeguard US workers’ wages and conditions. Workers receive defined protections and must maintain status. Understanding the legal framework, timelines, and compliance duties is critical for successful and lawful use of this route.
Section A: Overview of the H-2B Visa
The H-2B visa was created to address workforce shortages in non-agricultural industries where US employers cannot recruit enough domestic workers. It provides a lawful way for businesses to fill seasonal, peak load, intermittent, or one-time staffing needs while maintaining protections for the US labor market. Unlike immigrant routes, the H-2B is strictly temporary and tied to a specific employer’s petition.
1. Purpose and scope of the H-2B visa
The H-2B allows US employers to bring in foreign workers for short-term non-agricultural jobs. It is not intended for permanent positions, but for defined, time-limited needs such as tourist season employment, holiday demand, or large-scale one-off projects. The worker may only perform the duties approved in the petition and must depart the US once the authorised stay ends, unless lawfully extended.
2. Distinction between H-2A and H-2B visas
The H-2 category is divided into agricultural (H-2A) and non-agricultural (H-2B) streams. H-2A applies to temporary farm and agricultural roles such as harvesting, while H-2B applies to other industries including hospitality, construction, landscaping, seafood processing, and recreation. This separation ensures that each program addresses distinct seasonal labor needs with tailored rules.
3. Temporary need requirement
Employers must demonstrate that their need for foreign labor is genuinely temporary. US immigration law recognises four categories:
- Seasonal need – tied to recurring seasons or events such as summer resorts.
- Peak load need – additional staff needed during a surge in demand.
- Intermittent need – occasional labor requirements without ongoing staff.
- One-time occurrence – a temporary, non-recurring situation requiring short-term workers.
The Department of Labor (DOL) carefully reviews these claims during the labor certification process to prevent misuse of the H-2B route as a substitute for permanent hiring.
Section A Summary: The H-2B visa fills temporary, non-agricultural roles in industries with short-term labor shortages. Employers must prove the job falls within recognised temporary need categories and cannot use the program to meet permanent staffing demands.
Section B: Eligibility Criteria
Both the US employer and the foreign worker must meet strict eligibility standards for the H-2B visa. These requirements ensure the program is used appropriately and does not undermine the US workforce.
1. Employer eligibility
Employers must prove their need is temporary and falls into one of the recognised categories: seasonal, peak load, intermittent, or one-time occurrence. To do so, they must obtain a Temporary Labor Certification from the Department of Labor (DOL). The application requires:
- Evidence that there are not enough US workers able, willing, and qualified to perform the work.
- Proof that hiring foreign workers will not adversely affect the wages and working conditions of US workers in similar roles.
- Confirmation that the need is temporary and not an attempt to fill a permanent position.
Employers must also comply with wage requirements, pay inbound and outbound transportation and subsistence costs (subject to regulatory conditions), and ensure no recruitment fees are charged to workers. These obligations are strictly monitored by 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 with an approved labor certification and petition. Additional requirements include:
- Citizenship of a country designated by the Department of Homeland Security (DHS) as H-2B eligible. The list is updated annually, and workers from non-listed countries may only participate if DHS approves their case in the US interest.
- Admissibility to the United States under US immigration law (e.g., no disqualifying criminal or immigration violations).
Workers must leave the US at the end of their authorised stay unless an extension is lawfully approved. Remaining beyond the permitted period can result in bars to future entry.
3. Types of roles covered under H-2B
The H-2B program supports a variety of industries with seasonal or temporary workforce gaps. Common roles include:
- Landscaping and groundskeeping
- Hospitality and resort staff
- Amusement and recreational park workers
- Construction and related trades
- Seafood processing and meatpacking
- Housekeeping and cleaning services
Section B Summary: H-2B eligibility depends on compliance by both employer and worker. Employers must prove a temporary need and uphold strict labor protections, including wage, cost, and reporting duties. Workers must be from eligible countries, be admissible to the US, and comply fully with visa conditions.
Section C: Application Process
The H-2B process is employer-driven and involves several stages across different government agencies. Workers cannot apply independently; they may only proceed once the employer’s petition has been approved.
1. Employer process
The employer must first obtain a Temporary Labor Certification from the Department of Labor (DOL). This includes:
- Filing a job order with the State Workforce Agency to recruit US workers.
- Submitting the labor certification application to the DOL, proving the temporary nature of the work and compliance with prevailing wage rules.
- Carrying out mandatory recruitment steps to show genuine efforts to hire US workers.
Once certification is issued, the employer files Form I-129 (Petition for a Nonimmigrant Worker) with USCIS. If approved, the petition is forwarded to the Department of State for consular processing of the worker’s visa.
2. Worker application
Following petition approval, the worker applies for the visa at a US consulate or embassy. This generally requires:
- Completing the DS-160 online application form.
- Booking and attending a consular interview.
- Providing supporting documents such as passport, job offer, and evidence of ties to the home country.
If approved, the visa is placed in the worker’s passport, allowing travel to the US for employment with the sponsoring employer.
3. Timeframes, costs, and validity
Processing times vary across DOL, USCIS, and the Department of State, and employers must plan ahead of seasonal or peak needs. Key points include:
- Visa validity: Generally up to one year, tied to the employer’s temporary need.
- Extensions: Possible in one-year increments up to a three-year maximum. After three years, the worker must leave the US and remain abroad for at least three months before reapplying.
- Costs: Employers bear most petition and certification costs. Workers usually pay consular fees but cannot be charged unlawful recruitment or placement fees.
4. Cap and lottery system
The H-2B program is capped at 66,000 visas per fiscal year, split into two halves:
- 33,000 for jobs beginning between October 1 and March 31.
- 33,000 for jobs beginning between April 1 and September 30.
If demand exceeds supply, USCIS uses a random selection process (lottery) to allocate numbers. In practice, the cap is routinely reached quickly. Congress or DHS may also authorise supplemental H-2B visas for certain fiscal years to address critical labor shortages. Exemptions for returning workers are not permanent and depend on legislative or regulatory authority.
Section C Summary: The H-2B process is complex and time-sensitive. Employers must obtain DOL certification, secure USCIS approval, and coordinate worker consular processing. The cap and frequent oversubscription mean early preparation is vital.
Section D: Rights, Conditions, and Compliance
H-2B employment is governed by US immigration and labor laws designed to protect both US and foreign workers. Employers must meet strict compliance duties and workers must follow status conditions at all times.
1. Worker rights under US labor laws
H-2B workers are protected by federal wage and hour rules, workplace safety standards, and anti-discrimination laws. Core protections include:
- Payment of at least the certified prevailing wage and the terms set out in the approved job order.
- Safe and healthy worksites consistent with OSHA standards.
- Freedom from unlawful discrimination, harassment, and retaliation for raising concerns or cooperating with investigations.
- Access to enforcement bodies, including the Department of Labor’s Wage and Hour Division, to report violations.
Recruitment fees may not be charged to workers. Employers are responsible for transportation and subsistence costs in line with DOL rules and applicable law (including inbound and return travel under specified conditions). Deductions must be lawful and must not reduce pay below required wage levels.
2. Employer responsibilities
H-2B employers must adhere to the certified job terms and immigration reporting duties, including:
- Paying the required wage rate, providing the offered hours and working conditions, and complying with any guaranteed work obligations applicable to H-2B employment.
- Maintaining accurate records of recruitment, hours, wages, and worker departures.
- Covering transportation and subsistence consistent with DOL requirements and ensuring no recruitment fees are borne by workers.
- Promptly notifying USCIS if a worker fails to report, is terminated, or absconds, and cooperating with any audits or investigations.
Non-compliance can lead to civil money penalties, back wage liability, debarment from the H-2B program, petition denials, and in serious cases potential criminal exposure.
3. Extensions, changes, and portability
Extensions are possible in increments of up to one year, to a three-year maximum, and require a new Temporary Labor Certification and a new Form I-129 petition. After three years in H-2B status, a worker must depart and remain outside the US for an uninterrupted three months before being eligible for a new H-2B petition. A change of employer or change of status requires separate approval and is closely scrutinised.
4. Status maintenance and consequences of breach
Workers must perform only the duties authorised in the petition, for the named employer, within the validity period. Breaches—such as unauthorised employment, overstay, or violating job terms—can lead to removal and future inadmissibility. Employers that violate labor or immigration obligations risk significant penalties and loss of eligibility to participate in the program.
Section D Summary: The H-2B program balances urgent business needs with robust worker protections. Employers must uphold wage, hour, safety, transportation, and reporting duties; workers must follow visa conditions. Breaches carry serious consequences for both sides.
FAQs
What is the difference between H-2A and H-2B visas?
The H-2A visa applies to temporary agricultural work, such as farming and harvesting, while the H-2B visa covers non-agricultural temporary roles in industries such as hospitality, landscaping, and construction.
How long can I stay in the US on an H-2B visa?
The visa is usually granted for the employer’s certified temporary need, up to one year. Extensions are possible in one-year increments, but the total maximum is three years. After three years, the worker must leave the US and stay abroad for three uninterrupted months before seeking new H-2B employment.
Can H-2B workers bring dependents?
Yes. Spouses and unmarried children under 21 may apply for H-4 dependent visas. H-4 dependents may study but are not authorised to work in the United States. Employment authorisation rules that apply to certain H-4 spouses of H-1B holders do not extend to H-2B dependents.
Is the H-2B visa renewable?
Renewals are possible via extensions, but they require a new Temporary Labor Certification and a new Form I-129 petition. The three-year maximum limit applies, after which a three-month departure is mandatory.
What industries typically use the H-2B visa program?
Industries with high seasonal or peak demand, including hospitality, resorts, landscaping, amusement parks, seafood processing, construction, and cleaning services, are the most common users of the H-2B program.
Conclusion
The H-2B visa provides a regulated pathway for US employers to meet genuine short-term labor needs in non-agricultural sectors while safeguarding US workers. For employers, strict compliance is required: they must demonstrate temporary need, obtain labor certification, pay prevailing wages, cover lawful transportation and subsistence costs, and ensure accurate reporting. For workers, the visa offers lawful temporary employment, protections under US labor laws, and the ability to bring dependents, but requires strict adherence to status conditions.
Because the program is capped and demand often exceeds supply, early preparation is essential. Employers and workers must understand eligibility, the application process, and compliance duties to avoid penalties and loss of future opportunities. Used lawfully, the H-2B program can deliver benefits for US businesses and foreign nationals alike.
Glossary
| Term | Definition |
|---|---|
| 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 US workers. |
| USCIS | US Citizenship and Immigration Services, which adjudicates Form I-129 petitions. |
| DS-160 | Online nonimmigrant visa application form completed by H-2B workers prior to consular interview. |
| Cap | The statutory annual limit of 66,000 H-2B visas, often supplemented by additional numbers authorised by Congress or DHS. |
Useful Links
| Resource | Link |
|---|---|
| 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 |
Author
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who's Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.