What Is the Process for Hiring H-2B Workers?

The H-2B non-immigrant visa program allows employers to hire foreign workers to come to the U.S. and perform temporary nonagricultural work. This includes seasonal workers and on-time occurrence workers.

Hiring H-2B workers involves the U.S. Department of Labor (DOL) and U.S. immigration laws. For legal advice about hiring temporary workers and the H-2B process, talk to an immigration lawyer.

How Employers Qualify To Hire H-2B Workers

For employers to get H-2B workers, they must show that there are not enough U.S. workers who are willing, able, qualified, and available to work. Employers must also show that employing the foreign worker will not adversely affect the labor market, wages, and working conditions of similarly employed U.S. workers.

There is an H-2B cap of sixty-six thousand H-2B applications available each year. The cap is divided between two seasons, with 33,000 available in each season, based on the government fiscal year. The early season start dates begin in October and go through March. The second season includes start dates from April through November.

Rick Gump has practiced law in Texas for 45 years, much of it in immigration, and when it comes to the H-2B process for U.S. employers. “You need to start planning at least six months before you want somebody to start because there is just a lot of work to do,” he says.

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How Do Employers Start the H-2B Process?

An employer claiming a seasonal need must show that the service or labor for which it seeks full-time workers is traditionally linked to a season of the year by an event or pattern and is of a recurring nature. “The starting point is to identify the type of need that you are going to have,” Gump says.

To qualify for an H-2B visa, the employer needs to show a temporary need for foreign help, which includes:

1. Seasonal need. Work traditionally tied to a season by an event or pattern of a recurring nature
2. One-time occurrence. A temporary event, or intermittent need, of a limited time frame, for workers not employed in the past not employed in the future
3. Peak load basis. Need to temporarily supplement staff due to seasonal or short-term demand
4. Intermittent basis. Occasionally needs temporary workers to perform services or labor for short periods

“If an employer can’t provide evidence that the need is temporary based on one of those four issues and identify the number of people you are likely to need, then it’s going to end up getting denied,” Gump says.

Gump adds that he’s seen some recent pushback from the DOL aimed at construction and landscaping employers. Both industries employ large numbers of H-2B temporary nonagricultural workers. Landscape workers account for half of all H-2B visas. “I think it’s going to become more difficult to show that the employer has a true season,” Gump says. “If employers aren’t careful in following the rules, they are likely to see a denial.”

What Is the Foreign Labor Certification Process?

The H-2B certification process is a test to see if there is a U.S. citizen for the position.

“An employer must demonstrate their need and go through the recruitment efforts required,” says Gump. “You’ve got to follow that recruitment strictly because the government can come and audit you any time before or after you get the visa. The goal of labor certification is to ensure you are not preventing a U.S. citizen from getting the job.”

The labor certification process starts with an Application for Prevailing Wage Determination with the DOL and the local state workforce agency (SWA). That will determine a fair wage for the position based on similar positions in the local area of intended employment.

Common Reasons for Denial of an H-2B Application

“Most of the denials really come from the DOL, not U.S. Citizenship and Immigration Services (USCIS),” says Gump. “In other words, if your petition is going to get stuck, it’s probably going to get stuck at the DOL with regard to the temporary need or whether [the employer] has fulfilled what the payment of wages is going to be.”

“The DOL wants to see that the need is anchored by a recurring, particular season. If the employer’s records show that the business regularly has lower revenues in a given time period, DOL wants to know if that’s based on a true seasonal need or is that just the nature of your particular business,” says Gump.

Filing the Application for Temporary Employment Certification

Once a wage is issued, the employer posts a job order and files an Application for Temporary Employment Certification.

At this point, the employer must recruit U.S. workers for the position. The employer should receive labor certification, enabling them to move forward with the Petition for Nonimmigrant Worker. The visa applicant must go through their own separate visa process at their local U.S. consulate office to gain admission.

The maximum period for seasonal workers is nine months, at which point the visa holder must leave the country for three months before they can return. Employers can bring back the same full-time workers each season, assuming a successful application. If the visa holder gets approval for a one-time occurrence need for the employer, the length of stay can be extended to three years.

Current Need for Immigration Attorney Advice

Employers face a strict and complicated process when attempting to hire workers through the H-2B visa program. Now that process may be even more difficult for employers.

“What we know is the government is increasing enforcement as well as reviews of whether employers are really following the process — just to make sure employers aren’t cheating,” Gump says.

Now, more than ever, it is important that employers contact an experienced immigration attorney if considering the H-2B program.