H-2A Temporary Agricultural Non-immigrant Visa allows U.S. employers to bring foreign nationals to the United States to fill seasonal and temporary agricultural jobs for which U.S. workers are not available. The temporary work must be agricultural for a petitioner to apply for an H-2A visa. There is no annual cap on visas for H-2A workers.
To qualify as seasonal, employment must be tied to a certain time of year by an event or pattern, such as a short annual growing cycle or specific aspect of a longer cycle, and requires labor levels far above those necessary for ongoing operations.
To qualify as temporary, the employer’s need to fill the position will, except in extraordinary circumstances, last no longer than one year.
To qualify for H-2A non-immigrant classification, the petitioner must:
Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)
H-2B Temporary Non-Agricultural Non-immigrant Visa allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs for which U.S. workers are not available.
To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):
To qualify as temporary, the petitioner's need for the foreign worker’s services or labor shall be a:
– Seasonal need for ≤ 1 year, you cannot claim a seasonal need if the time period when you do NOT need the service or labor is unpredictable, subject to change, or considered a vacation period for your permanent employees.
– Peakload need for ≤ 1 year,
– An intermittent need for ≤ 1 year, or
– One-time occurrence for ≤ 3 years.
The top industries that utilize H-2B workers are Resort and Hospitality Services, retail Sales, landscaping, food Service and processing, and construction. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.