H-2 Visa: Pathway to Non-Immigration Visa Services for Seasonal or Agricultural Workers

The H-2 visa program allows temporary workers to legally work in the United States in various industries, including agriculture, construction, forestry, and landscaping. Some key features of the H-2 visa program include: 

• Rights: H-2 visa holders have the same rights as other workers in the United States, including: 
  • Being paid fairly 
  • Being free from discrimination and sexual harassment 
  • Having a safe and healthy workplace 
  • Being able to request help from labor rights groups 
  • Being able to leave an abusive employment situation 
  • Not having to pay fees to a labor recruiter

There are two types of H-2 visas:

• H-2A: For temporary agricultural work.
• H-2B: For temporary or seasonal non-agricultural work.

To be eligible for a H-2 visa, your employer has to meet certain eligibility requirements.

Firstly, your employer (also known in this process as the petitioner) has to prove the following:

• That there is a shortage of U.S based staff that are qualified, willing and able to do the work temporarily.
• That employing you will not negatively affect the employment benefits of other U.S-based staff in their establishment.
• That they have a business physically based in the U.S.
• That they have a valid Federal Employer Identification Number (FEIN).
• That your employer’s need for you is only temporary.

Your employment is considered temporary if it is a one-time occurrence, seasonal need, peak load need or intermittent need.

Your employer has to prove on-time occurrence by showing that they have:

• A permanent employment opportunity but need a temporary worker due to an event of short duration.
• Not employed anyone to perform the task before and will not need anyone else to do so in the future.

If your employer is claiming a seasonal need, they must show that the job you’re coming to do:

• Is tied to a particular time of the year.
• Is a recurring role.

If your employer is claiming peak load need, they have to show that they:

• Employ permanent workers in their establishment.
• Need to supplement staffing needs due to excess demands.
• Don’t intend to make you a permanent staff member.

If your employer is claiming intermittent need, they must show that they:

• Sometimes need temporary workers to perform some roles for a short time.
• Have not employed someone else permanently to do the work for which they are about to hire you.

The H2-B visa program has a numerical limit on the number of visas issued each fiscal year. The cap has been set at 66,000 per fiscal year. The first 33,000 workers can begin employment during the first half of the fiscal year from October 1 to March 31.

The second 33,000 workers can start work during the second half of the fiscal year from April 1 to September 30. If the limits are not reached during the first portion of the fiscal year, then they can be used by employers during the second. Unused visas cannot be carried over into the next year.

When the H-2B cap is reached, the USCIS will only accept an H-2B petition for workers who are exempt from the cap.

In 2021, for the first time in history, the Department of Labor and the Department of Homeland Security issued a temporary final rule increase on the H-2B cap to 22,000 visas for the fiscal year of 2021.    

The increasing need for H-2B workers is not slowing down, especially in the construction field. There is a push for legislation which could remove the cap or increase it for the H-2B visa program. The H-2B visa may be redrafted to resemble the H-2A visa which has no yearly cap cutoff.

With the changing visa landscape, employers may want to seek out the assistance of a skilled foreign worker agency to navigate the applications process.

When an employer needs workers, they don’t want to have to deal with holdups, problems, or avoidable errors which can occur with the excessive required paperwork. An experienced foreign worker employment agency can manage all aspects of application and requirements. 

If a worker has an H-2 visa for a total of three years, then they are required to depart and stay in their home country for a period of three month before again seeking readmission using an H-2 nonimmigrant visa. One thing to note is that any time spent with either an H or L classification will still count towards the H-2 visa time. 

The H-2 nonimmigrant program permits employers to temporarily hire nonimmigrants to perform agricultural (H-2A Visa) or nonagricultural (H-2B Visa) labor or services in the United States. If you have further questions or need assistance with your application, feel free to ask!