H-2B Visa Program
Temporary Work Visas for Seasonal Workers

What is an H-2B Visa?

The H-2B Visa Program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the U.S. to fill temporary nonagricultural jobs. The program allows foreign nationals to work for a sponsoring employer to fill seasonal positions, on one-time projects, during times of exceptionally high workload, or intermittently.

The H-2B Visa Program is designed to benefit various American industries including, landscaping, seasonal hospitality, seasonal construction, to meet specific needs in manufacturing, food packaging and processing, retail, and other industries. The program helps employers who need temporary services or labor bring foreign workers to the U.S. when there is a lack of availability of domestic workers to provide the temporary services or labor.

One of the main driving factors for H-2B visas is the demand for truck drivers. As the country emerges from the pandemic, trucking and transportation companies are struggling to hire enough drivers domestically. If you are interested in coming to America to work as a truck driver, the H-2B nonimmigrant visa program is likely the best path.

H-2B Visa Requirements

To qualify for H-2B nonimmigrant classification, the petitioner (employer) must establish that there are not enough U.S. workers who are able, willing, qualified, and available to provide the temporary services or labor; that employing H-2B workers will not adversely affect the wages and the working conditions of similarly employed U.S. workers; that the petitioner’s need for the prospective worker’s services or labor is temporary regardless of whether the underlying job can be described as temporary; and must submit a single valid temporary labor certification from the U.S. Department of Labor (DOL) along with the H-2B petition. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, during times of exceptionally high workload, or an intermittent need.

Before requesting H-2B classification from U.S. Citizenship and Immigration Services (USCIS), the petitioner must apply for and receive a temporary labor certification application to the DOL. After receiving a temporary labor certification from the DOL, the petitioner must file Form I-129, Petition for a Nonimmigrant Worker, with USCIS on the prospective employee’s behalf.

Complex Application Process

The H-2B visa application process is a complex process that can be broken down to three distinct phases:

• The employer applies for labor certification from the Department of Labor. This phase includes conducting a labor market test with the State Workforce Agency where the work will be performed.
• Employer petitions USCIS for approval to hire a specific number of workers under the H-2B visa classification.
• After USCIS approves the petition, workers apply with a Department of State visa-issuing embassy or consulate abroad for their H-2B visa.

Number of H-2B Visas Available

H-2B visas are typically capped at 66,000 annually. Half – 33,000 visas – go to workers with job start dates during the first half of the fiscal year, October 1-March 31, and the other half are reserved for workers who begin working April 1-September 30. As demand for H-2B visas typically far exceeds availability, especially for the spring and summer months, the process is competitive and application timing is especially crucial. Applications submitted during the peak three-day window at the beginning of January for jobs with start dates of April 1 or later are randomly assigned to groups, with those in Group A processed first. In 2021, 5,403 applications requesting more than 96,888 positions were received during the three-day peak filing window at the start of the year.

Certain H-2B workers are exempt from the cap. These include workers hired for certain fish roe positions along with workers already in the United States on an H-2B visa who extend their stay, change employers, or change the terms and conditions of their employment.

H-2B Visas for Truck Drivers

To qualify for an H-2B visa as a truck driver, you must be at least 18 years old. While commercial driver’s licenses (CDLs) issued in Mexico and Canada are valid in the United States, other drivers will need to pass a test and receive their U.S. CDL before beginning work. Your employer is responsible for ensuring that you are trained and licensed.

H-2B visas are only available to citizens of about 80 countries as approved by the Department of Homeland Security (DHS). The approved countries list, which was last updated on Jan. 19, 2021, includes Mexico, Canada, and nations from all regions of the world.

H-2B Visas for Construction Workers

Depending on their business, some construction companies may have a seasonal need for workers. For instance, a pool construction company may only have projects during certain times of the year. More commonly, construction companies often have a peak-load need for workers, which means they need to supplement permanent staff with temporary workers to meet a seasonal or short-term demand. For instance, a construction company whose areas of focus include K-12 school renovations may have more projects and therefore more demand for workers during the summer, when schools are closed. Similarly, a construction company with a concentration on outdoor projects may have more demand during the more temperate months of the year, when a greater number of projects happen.

Applying For An H-2B Visa While In The United States

If you’re already in the US, an H-2B visa lawyer can help. At Bolour / Carl Immigration Group, APC, we specialize in assisting both employers and workers through the complexities of immigration law, ensuring that all requirements are met efficiently and effectively.

Eligibility And Requirements

The H-2B visa is designed for temporary or seasonal non-agricultural work. Unlike other work visas, it is not limited to specialty occupations. To qualify, the job must be one that is temporary in nature, such as a peak load need, seasonal need, intermittent need, or a one-time occurrence. The first step for an employer is to prove that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

For workers applying from within the U.S., it’s essential to verify that your current status allows you to change to an H-2B visa. A lawyer who specializes in temporary work visas for seasonal workers can help you get started.

Steps In The Application Process

The process begins with the employer filing a Temporary Labor Certification for H-2B workers with the U.S. Department of Labor (DOL). This certification must demonstrate the temporary nature of the job and the lack of available U.S. workers. Once the labor certification is approved, the employer must then file Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).

Important Considerations

When applying to change your status to H-2B within the United States, it’s crucial to maintain legal status throughout the process. If your current visa expires before your H-2B application is approved, you could be found to be out of status, which might jeopardize your ability to stay in the U.S. Furthermore, it’s important to understand that H-2B visas are capped annually. There are only a certain number of visas available each fiscal year, so timing your application correctly is essential.

Additionally, while you can legally stay in the U.S. while your change of status application is pending, you should not start working in the H-2B position until your application has been approved. Doing so could lead to violations of your current visa conditions and affect your H-2B status.

How We Can Help

At Bolour / Carl Immigration Group, APC, we have years of experience guiding clients through the H-2B visa application process. We understand the complexities involved and provide personalized assistance to meet the specific needs of both employers and workers. Our goal is to ensure that your application is completed accurately and efficiently, maximizing your chances of approval.

Contact Us Today

If you’re currently in the United States and considering applying for an H-2B visa, or if you’re an employer looking to hire foreign seasonal workers, contact us today. We’ll review your situation, discuss your options, and provide you with a clear path forward. Let Bolour / Carl Immigration Group, APC help you achieve your goals with confidence and peace of mind. Reach out to us to set up a consultation, and see how an H-2B visa lawyer from our office can help you get started.