The H-2A visa allows United States agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the country to perform agricultural labor or services of a temporary or seasonal nature on a farm. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, they may bring a nonimmigrant worker into the country for a period of up to 10 months. During that time, the nonimmigrant worker is guaranteed certain rights, which are outlined below.

• The position must be “agricultural” – this means work performed on a farm
• The job must be for less than one year (usually no more than 10 months) and tied to a crop or commodity
• There must be no qualified and willing American workers (U.S. citizens or permanent residents/green card holders) available for the position
• Employer must agree to pay H-2A workers and U.S. workers in H-2A positions in accordance with the U.S. Government’s Adverse Effect Wage Rate, which varies by state
• Employer must provide free housing to H-2A workers and those American workers who are not reasonably able to return to their residence at the end of the day
• Employer must pay inbound transportation and subsistence expenses, as well as return transportation in some cases, set by the Federal Government each year
• Employer must guarantee its H-2A and U.S. workers corresponding employment work for 75 percent of the contract period
• Employer must provide three meals per day (chargeable to workers) or provide kitchen facilities
• Employer must provide Workers’ Compensation Insurance

Before employing H-2A workers, an employer must make an active effort to recruit U.S. workers. This includes placing a job order with the applicable state Department of Labor (DOL) and two newspaper advertisements in the area of intended employment, among other steps.

Almost every admissible alien is eligible to become an H-2A worker if they are on the “eligible country list.” To be eligible, an alien must meet two requirements:

• The foreign national must have a valid job offer from an eligible H-2A employer
• The foreign national must intend to return to his or her home country at the expiration of the H-2A visa

Generally, three things must be done before a nonimmigrant worker can begin employment.

• Labor certification:

The first step in the H-2A visa application process is filing a labor certification application (Form ETA-9142) with the DOL. In filing this, the employer must demonstrate that qualified workers are not available in the United States and that the foreign worker’s employment will not adversely affect wages and working conditions of similarly employed U.S. workers. The state DOL will inspect worker housing. The U.S. DOL will either grant or deny the labor certification.

• Employer’s Visa application:

The second step is petitioning United States Citizenship and Immigration Services (USCIS) for the actual H-2A visa with form I-129. If an application is approved, the USCIS will notify the consulate in the alien’s home country.

• Employee’s Visa application with the U.S. Consulate:

Finally, the worker has to file their own visa application with the consulate in their home country. It is important to note that the employer’s petition approval does not guarantee the visa approval of the alien.

The H-2B visa allows United States seasonal employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the United States to perform non-agricultural labor or services of a temporary or seasonal nature. This visa, like many other employment visas, requires employer sponsorship. The employer must meet several requirements before actually bringing nonimmigrant workers to the United States. If the employer meets the requirements, they may bring a nonimmigrant worker into the country for a maximum of 10 months (in practice, however, the DOL has recently been imposing a 9-month limit). During that time, the nonimmigrant worker is guaranteed certain rights, which are outlined below.

Click the following links to download H-2B Employer Resources:

Employer H-2B Visa Questionnaire

2022 H-2B Audit Compliance Requirements

The H-2B annual numerical cap is set at 66,000, which is split between 2 seasons:

• October 1 (1st Half of FY)
• April 1 (2nd Half of FY)

The fiscal year is designated by the calendar year in which it ends:

• 1st Half of FY = October 1 to March 31 (October 1, 2019 = FY2020 [1st half])
• 2nd Half of FY = April 1 to September 30 (April 1, 2020 = FY2020  [2nd half])

• The job offer must be for a temporary/seasonal position (seasonal, intermittent, peak load, one-time occurrence, etc.) in which the employer anticipates a shortage of domestic workers
• The job must be for less than one year (usually no more than 9 or 10 months)
• There must be no qualified and willing American workers (U.S. citizens or permanent residents/green card holders) available for the position
• Employer must agree to pay H-2B workers and U.S. workers in H-2B positions in accordance with the U.S. Government’s Adverse Effect Wage Rate, which varies by state
• Employer must pay inbound transportation and subsistence expenses, as well as return transportation in some cases, set by the Federal Government each year
• Employer must reimburse workers for visa-related expenses at the U.S. Consulate in their home country, including recruiter/agent fees and consular processing visa fees. These expenses should be reimbursed within the first week of work
• Employer must provide Workers’ Compensation Insurance
• Employer must pay all workers the required Prevailing Wage Rate, plus overtime for hours worked over 40 hours in a week, and guarantee full-time employment, which is defined as at least 35 hours per week
• While the employer is not required to provide housing to H-2B workers, the employer should make arrangements for housing in advance of the workers’ arrival. The workers are responsible for all housing costs and related expenses
• Employer must withhold tax and pay all applicable state, federal and social security taxes for H-2B workers

Before employing H-2B workers, an employer must make an active effort to recruit U.S. workers. This includes placing a job order with the applicable state DOL and two newspaper advertisements in the area of intended employment, among other steps.

The DOL defines “temporary need” as “Services where the petitioner’s need for the duties to be performed, rather than the job itself, is temporary. It is the nature of the employer’s need, not the nature of the duties, that is controlling.”
The nature of the employer’s temporary need for H-2B employment must be seasonal, peak load, intermittent, or a one-time occurrence as defined in 8 CFR 214.2(h)(6)(ii).

One-Time Occurrence
The petitioner must establish that the employer:

• Has not employed workers to perform the services or labor in the past and that it will not need workers to perform the services or labor in the future; or
• Has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker

Seasonal Need
The petitioner must establish that the services or labor are:

• Traditionally tied to a season of the year by an event or pattern; and
• Of a recurring nature

Peak Load Need
The petitioner must establish that:

• The employer regularly employs permanent workers to perform the services or labor at the place of employment;
• The employer needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand; and
• The temporary additions to staff will not become part of the petitioner’s regular operation

Intermittent Need
The petitioner must establish that it has not employed permanent or full-time workers to perform the services or labor, but occasionally or intermittently needs temporary workers to perform services or labor for short periods.