If you employ seasonal or temporary workers, the H-2B nonimmigrant visa allows you to expand the available talent pool beyond the United States when necessary. Under the H-2B program, U.S. employers who meet specific regulatory requirements can bring foreign workers to the country to fill temporary non-agricultural positions. These positions include but are not limited to:

• Entertainers
• Athletes
• Business coaches and trainers
• Ski instructors
• Home care attendants
• Nannies

To obtain an H-2B visa as an employer, you need to establish that you can’t find qualified U.S. workers willing to do the job, which must be a temporary one, and that bringing in foreign workers won’t have a negative impact on the working conditions and wages of U.S. workers doing similar jobs. This blog outlines how to apply for the H-2B visa for qualifying positions and how a Los Angeles immigration lawyer can help.

What is a ‘Temporary’ Position?

H-2B visas are only available to nonagricultural workers needed on a temporary basis, regardless of whether the job itself can be described as temporary. This could be a seasonal position (e.g. a ski instructor) or a job created by a temporary, short-term event, such as a music festival.

Your employment needs are classified as temporary if:

• The job is a one-time occurrence. Even if there are similar permanent positions, you need a temporary worker for a one-time event of short duration. You must not have employed workers to do the same job in the past and will not need anyone to do it in the future.
  OR
• You need workers for labor or service on a seasonal basis. The job itself must be of a recurring nature and traditionally connected to a particular season.
  OR
• You have a peak load need. You’ll need to show that you regularly engage permanent workers to do the job but need to temporarily supplement this workforce due to a short-term or seasonal demand. These temporary additions to your team must not become part of your regular operation.
  OR
• You have an intermittent need. To qualify, you need to demonstrate that you haven’t employed full-time or permanent workers to do the job and you intermittently or occasionally need temporary help for short periods.

There is a Cap on H-2B Visa Availability

There is a yearly cap on the number of foreign workers who may receive an H-2B visa. At present, the limit is 66,000, with 33,000 being available for those who begin work between October 1 and March 31 and the remaining 33,000 for workers employed between April 1 and September 30.  

Note: Employers looking to hire H-2B workers in the second half of the fiscal year can take advantage of any unused numbers from the first half. However, there is no carryover of unused H-2B numbers from one fiscal year to the next.

Once caps are reached, you may only petition for workers who are exempt from the cap. This applies to those who:

• Change employers
• Change the terms and conditions of employment
• Extend their stay
• Are processors, technicians, and supervisors involved in fish roe processing
• Work in Guam or  the Commonwealth of Northern Mariana Islands

The H-2B Visa Application Process

The process begins by submitting an application for temporary labor certification to the U.S. Department of Labor. (You may bypass this step if you’re employing Canadian musicians for 30 days or less, provided the employment location is within 50 miles of the U.S.-Canadian border.)

Once you receive it, you must file Form I-129 with USCIS, along with the original temporary labor certification. After USCIS approves your petition, the prospective worker must either:

• Apply for an H-2B visa with the Department of State at their nearest U.S. Embassy or Consulate and then seek admission with U.S. Customs and Border Protection at a U.S. port of entry; OR
• Seek admission in H-2B classification with U.S. Customs and Border Protection at a U.S. port of entry (for cases where an H-2B visa is not needed)

Those who receive an H-2B visa may be accompanied by their spouse and unmarried children under 21 years of age when they come to the U.S. These dependents are allowed to study at educational institutions while in the U.S., but may not seek employment.

How Long is the H-2B Visa Valid?

H-2B classification is valid for the period of time indicated on the temporary labor certification. For qualifying positions, the classification may be extended in one-year increments, although you will have to obtain a new temporary labor certification for each extension request. 

Three years is the maximum period of stay in the H-2B classification. After this point, the worker must leave and remain outside the U.S. for at least three straight months before seeking readmission in the H-2B nonimmigrant category. While certain amounts of time spent outside the country may not count toward the three-year limit, you want to ensure that your worker actually qualifies for an exception.

Can Nationals of Any Country Receive an H-2B Visa?

Potential beneficiaries of H-2B work permits may only be approved if their countries have been designated by the Department of Homeland Security, with the concurrence of the Department of State, as eligible to participate. This includes Canada, Mexico, the Philippines, most European countries, and certain South American countries, as well as Jamaica. The most recent list is below from the USCIS website. 

Effective Nov. 10, nationals of the following countries are eligible to receive H-2A and H-2B visas:

Andorra	Fiji	Malta	Saint Lucia
Argentina	Finland	Mauritius	San Marino
Australia	France	Mexico	Serbia
Austria	Germany	Moldova*	Singapore
Barbados	Greece	Monaco	Slovakia
Belgium	Grenada	Mongolia**	Slovenia
Bosnia and Herzegovina	Guatemala	Montenegro	Solomon Islands
Brazil	Haiti	Mozambique	South Africa
Brunei	Honduras	Nauru	South Korea
Bulgaria	Hungary	The Netherlands	Spain
Canada	Iceland	New Zealand	St. Vincent and the Grenadines
Chile	Ireland	Nicaragua	Sweden
Colombia	Israel	North Macedonia	Switzerland
Costa Rica	Italy	Norway	Taiwan***
Croatia	Jamaica	Panama	Thailand
Republic of Cyprus	Japan	Papua New Guinea	Timor-Leste
Czech Republic	Kiribati	Paraguay*	Turkey
Denmark	Latvia	Peru	Tuvalu
Dominican Republic	Liechtenstein	Philippines**	Ukraine
Ecuador	Lithuania	Poland	United Kingdom
El Salvador	Luxembourg	Portugal	Uruguay
Estonia	Madagascar	Romania	Vanuatu

*Moldova and Paraguay are eligible to participate in the H-2A program but they are not eligible to participate in the H-2B program. Moldova’s eligibility for the H-2A program remains effective until Jan. 18, 2022.

**Mongolia and the Philippines are eligible to participate in the H-2B program but are not eligible to participate in the H-2A program.

***Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

An H-2B Visa attorney at our firm can help you determine the beneficiary’s country’s eligibility and application process.

Speak With an Experienced Los Angeles Immigration Lawyer

Bringing temporary foreign workers to the United States may be beneficial for your business, but the process can be complicated. At the Immigration Law Office of Los Angeles, P.C., we understand the legal requirements and challenges associated with obtaining nonimmigrant visas for temporary employment and can guide you through all necessary steps. For more information on how we can help you grow your workforce when needed, please call (213) 375-4084 or contact us online.