H-2B Visa for Temporary Nonagricultural Workers: Who Qualifies?

The H-2B visa was created to allow people to come to the U.S. temporarily as nonagricultural workers, to fill positions for which U.S. workers are in short supply.

In this article, we will explain who is eligible for an H-2B visa and how to apply. For the law itself regarding H-2B visas, see the Immigration and Nationality Act or I.N.A. § 101 (a)(15)(H), 8 U.S.C. § 1101(a)(15)(H).

How Many H-2B Visas Are Available Each Year?

Ordinarily, the total number of H‑2B visa petitions that can be approved during the U.S. government fiscal year (October 1 through September 30) is 66,000. (The law basically divides the fiscal year into two parts, so that half the visas can be passed out during the first six months and the remainder during the second six months of the fiscal year.)

In the past, the annual quota has not always been enough to meet the demand for visas in this category. Thus the Department of Homeland Security (DHS) sometimes announces supplemental increase, as it did for fiscal year 20220,000 ; adding 64,716 H-2B visas to the pot, to be allocated in two six-month periods.

Of the supplemental FY 2023 allotment, 20,000 visas will be reserved for workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,716 supplemental visas will go to returning workers who were granted an H-2B visa or status during one of the previous three fiscal years.

Key Features of the H-2B Visa

Let's review some of the pluses, minuses, and issues surrounding the H-2B visa:

• The visa allows its holder to work legally in the U.S. in H-2B status, although for relatively short periods of time.
• The employer must guarantee payment of wages for at least three-fourths of the contract period and the wages must be at or above the federal, state, or local minimum wage or the prevailing wage rate, whichever is highest.
• The employer must also pay or reimburse workers for transportation and visa costs, and must provide workers' compensation insurance.
• Visas might be available for the accompanying spouse and minor, unmarried children (in category H-4), without quota limitations. However, there are risks associated with asking to bring a spouse and/or children; namely that the consular officer reviewing the case might wonder why the applicant would uproot an entire family for a short-term job. Perhaps, the officer might imagine, the applicant has secret plans to stay in the U.S. permanently. In that case, the person would not qualify for the H-2B visa in the first place.
• If the spouse and children come to the U.S. in H-4 status they may not work (though they might qualify for a work visa in their own right).
• The H-2B visa holder and family may travel in and out of the U.S. or remain here continuously until the visa status expires.

Qualification Criteria for an H-2B Visa

H-2B visas are meant for both skilled and unskilled workers (unlike H-1B visas, which are solely meant for college-educated workers).

The applicant must meet a number of requirements to qualify for an H-2B visa:

• The applicant must either come from a country on the list of current participants or meet the criteria for an exception. The list of H-2B participating countries is published in the Federal Register, and depends on:
  • the country's cooperation regarding issuing travel documents for its citizens, subjects, nationals, and residents of that country when they become subject to a final order of removal from the United States
  • the number of final and unexecuted U.S. orders of removal against its citizens, subjects, nationals, and residents
  • the number of U.S. orders of removal executed against that country's citizens, subjects, nationals, and residents, and
  • such other factors as might serve the interests of the United States.
• The applicant must have a job offer from a U.S. employer to perform work that is temporary; meaning seasonal, onetime, peak load, or intermittent.
• The applicant must have the correct background to qualify for the job that he or she has been offered.
• There must be no qualified U.S. workers willing or able to take the job. A temporary labor certification is required.
• The applicant must intend to return home when the visa expires.

The term "temporary" refers to the employer's need for the duties performed by the position. There must be a specific beginning and end to the employer's need for the worker's services. Seasonal laborers, workers on short-term business projects, and those who come to the U.S. as trainers of other workers commonly get H-2B visas. A job can be deemed temporary if it is a one-time occurrence, meets a seasonal or peak-load need, or fulfills an intermittent but not regular need of the employer.

H-2B visas are also frequently used for entertainers who cannot meet the criteria for O or P visas. H-2B visas enable such entertainers to come to the U.S. for specific bookings. These bookings are considered temporary positions.

The H-2B is most commonly used for landscapers and groundskeepers, forest and other conservation workers, maids and house cleaners, amusement and recreation attendants, meat, poultry, and fish cutters and trimmers, and waiters or waitresses. Other jobs that have met the criteria include athletes, camp counselors, craftspersons, horse trainers, and home attendants for terminally ill patients. Although we've just given several examples of jobs that meet the USCIS's definition of temporary, be aware that most jobs do not.

Also realize that the work itself needs to be legal, or you could become deportable or ineligible for future visas to the United States.

For instance, despite marijuana having gained various degrees of legality in states such as Washington, Colorado, and California, it remains on the list of controlled substances under the Controlled Substances Act (21 U.S.C. § 802). And U.S. Customs and Border Protection (CBP) officials, who meet people at borders, airports, and other entry points, have in past cases deemed labor in marijuana fields to be a form of "drug trafficking," which is among the many activities that can lead a person to be found inadmissible to the U.S., under Section 212(a) of the Immigration and Nationality Act (I.N.A.).

If a Country Is Not on the List: Qualifying for an Exception

For a person from a nonparticipating country to qualify for an exception, he or she must show evidence of being the beneficiary of an approved H-2B petition, as well as how approval would serve the U.S. interests, based on such factors as:

• the lack of workers with the required skills among the participating countries
• the person's previous admission to the U.S. in H-2B status
• the low chance of abuse, fraud, or other harm to the integrity of the H-2B visa program if this person were granted a visa, and
• other factors that might serve the U.S. interest.

Unfortunately, the U.S. government's record of decisions on when to grant such exceptions is noted for its inconsistency.

H-2B Participating Countries

As of 2022, the following countries are on the H-2B visa list:

Interested in an H-2B Visa: What's Next?

If you think you might qualify for an H-2B visa, your most important task is to find a U.S. employer who wants to hire you and has the patience to wait until you've gotten through the visa process. That employer will most likely need to hire a lawyer to help. Larger employers often have their own lawyers on staff. Because in most years, there are more people trying to get an H-1B visa than there are visas available, a lawyer can help make sure that your application is done right the first time, and gets filed before the visas run out.

For details about what to expect and do during the application process, see U.S. Immigration Made Easy, by Ilona Bray (Nolo). Or, consult an immigration attorney for a full personal analysis.