The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.

To qualify for H-2B nonimmigrant classification:

1. The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
2. The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
3. The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
4. Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)

H-2B Visa – Cap

There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, see the “Cap Count for H-2B Nonimmigrants” link to the right or go to it directly at www.uscis.gov/h-2b_count

H-2B Visa – Program Process

1. Step 1: Employer Submits Temporary Labor Certification Application to the Department of Labor. Prior to requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam Department of Labor if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the Foreign Labor Certification, Department of Labor and Foreign Labor Certification, Guam Department of Labor” links to the right.
2. Step 2: Employer Submits Form I-129 to USCIS. After receiving a temporary labor certification for H-2B employment from either the U.S. Department of Labor or Guam Department of Labor (if applicable), the employer should file a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting H-2B workers. The approved temporary labor certification must be submitted with the Form I-129. (See the instructions to the Form I-129 for additional filing requirements.)
3. Step 3: Prospective Workers Outside the United States Apply for Visa and/or Admission. After an employer’s Form I-129 is approved by USCIS, prospective H-2B workers who are outside the United States may apply with the U.S. Department of State at a U.S. embassy or consulate abroad for an H-2B visa (if a visa is required) and, regardless of whether a visa is required, apply to U.S. Customs and Border Protection for admission to the United States in H-2B classification.

* Note: Employers requesting employment in a position that is exempt from the U.S. Department of Labor’s temporary labor certification application filing requirement may skip Step 1 in the H-2B process.

H-2B Visa – Eligible Countries List

H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*.

The list of H-2B visa eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B visa list of eligible countries will be valid for one year from publication.

Effective Jan. 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B visa programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu. Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

* A national from a country not on the list may only be the beneficiary of an approved H-2B visa petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.