H-2A/H-2B Visas

H-2A Visa Program

The H-2A Program for Temporary Agricultural Workers was created by the United States Congress in 1990 to stimulate the United States economy through temporary and seasonal agricultural employment. The H-2A program permits U.S. companies, agencies, or individual employers (“Petitioners”), who meet specific requirements and regulations, to bring in foreign nationals to fill in vacant positions within the agricultural field for seasonal or temporary time periods. For more information please see below.

Frequently Asked Questions: H-2A

Who can apply for the H-2A Visa? 

To qualify under the H-2A visa category, the petitioner must demonstrate the following:

1. Offer a job of temporary or seasonal nature;
2. Demonstrate that there are not enough United States workers capable, willing, qualified, or able to fill the temporary position;
3. Demonstrate that contracting H-2A employees will not adversely affect the wages and working conditions of US employees in similar positions;
4. Generally, submit a single valid temporary labor certification from the U.S. Department of Labor (DOL) with the H-2A petition.

What are the steps to obtain an H-2A visa?

Step 1: Petitioner submits a temporary labor certification application to the DOL.

Step 2: Petitioner submits Form I-129 to the United States Citizenship and Immigration Services (USCIS).

Step 3: After USCIS approves the Form I-129, prospective H-2A workers who are outside the United States must:

1. Apply for an H-2A visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. Port of Entry; OR
2. Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry, if a worker does not require a visa in cases where an H-2A visa is not required.

How long can I remain in the United States with the H-2A visa?

Generally, USCIS may grant H-2A classification for up to the period of time authorized on the temporary labor certification. H-2A classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2A classification is up to 3 years.

A person who has held H-2A nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2A nonimmigrant. Additionally, previous time spent in other H or L classification counts toward total H-2A time.

**Exception: Certain periods of time spent outside of the United States may “interrupt” an H-2A worker’s authorized stay and not count toward the 3 year limit.

Can I bring my family with me to the United States under the H-2A visa? 

An H-2A worker’s spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

H-2B Visa Program

The H-2B Program for Temporary Non-Agricultural Workers was created by the United States Congress in 1990 to stimulate the United States economy through temporary, Non-Agricultural work. The H-2B program allows U.S. employers or U.S. agents (“petitioners”)who meet specific regulatory requirements to bring aliens to the United States to fill temporary non agricultural jobs. There are 66,000 H-2B visas available each year.

Frequently Asked Questions: H-2B

How qualifies to apply for the H-2B visa?

To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

1. There are not enough US workers who are able, willing, qualified, and available to do the temporary work.
2. Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers
3. Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.

When is a job considered temporary?

The employer’s need is considered temporary if it is one of the following:

1. A one-time occurrence: A petitioner claiming a one-time occurrence must show that it has
   • An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
   • Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future.
2. Seasonal need: A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
   • Traditionally tied to a season of the year  by an event or pattern; and
   • of a recurring nature.
   • **note: you cannot claim a seasonal need if the time period when you do NOT need the service or labor is
     • unpredictable;
     • subject to change; or
     • considered a vacation period for your permanent employees.
3. Peakload need: A petitioner claiming a peakload need must show that it:
   • Regularly employs permanent workers to perform the services or labor at the place of employment;
   • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
   • The temporary additions to staff will not become part of the employer’s regular operation.
4. Intermittent need: A petitioner claiming an intermittent need must show that it:
   • Has not employed permanent or full-time workers to perform the services or labor; and
   • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

What are the steps to apply for the H-2B visa? 

Step 1: Petitioner submits temporary labor certification to DOL.

Step 2: Petitioner submits Form I-129 to USCIS once they receive the temporary labor certification from the DOL.

Step 3: After USCIS aprroves Form I-129, prospective H-2B workers who are outside the United States must:

• Apply for an H-2B Visa with the U.S. Department of State (DOS) at a US embassy or Consulate abroad and then seek admission to the United States with US Customs and Border Protection (CBP) at a US Port of Entry; or
• Directly seek admission to the United States in H-2B classification with CBP at a US port of entry in cases where an H-2B visa is not required.

What is the time period that I can stay in the United States with the H-2B visa? 

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classification counts toward total H-2B time.

**Exception: Certain period of time spent outside of the United States may “interrupt” an H-2B worker’s authorized stay and not count toward the 3-year limit.

Can I bring my family with me on an H-2B visa? 

Any H-2B worker’s spouse and unmarried under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.