Through the H-2A and H-2B visa programs, foreign national workers can be admitted to the United States to work temporarily in jobs that do not require much formal education. The programs are intended to help U.S. employers fill certain seasonal or temporary positions that they are unable to fill domestically. While the application process and many specifics are very similar for the two programs, there are several important differences.
Different Jobs
The H-2A visa program specifically applies to agricultural workers who are hired to fill seasonal or other temporary positions on farms, ranches, nurseries, orchards and other agricultural businesses. Typical work includes the planting, irrigating and harvesting of crops, range herding, and livestock production.
By contrast, the H-2B visa program is for workers who fill seasonal or temporary jobs in a variety of sectors, from hospitality to construction to meat and seafood processing. In recent years, landscaping and groundskeeping have been the largest category for H-2B visas granted. Over the last year, there has been a surge in applications for truck drivers amid acute shortages in that industry.
Number of Visas Available
H-2A visas are unlimited, and the program has grown steadily in recent years. In fiscal 2019, H-2A visa issuances exceeded 200,000 for the first time in the program’s history.
However, H-2B visas are typically capped at 66,000 annually. Half – 33,000 visas – go to workers with job start dates during the first half of the fiscal year, October 1-March 31, and the other half are reserved for workers who begin working April 1-September 30. As demand for H-2B visas typically far exceeds availability, especially for the spring and summer months, the process is competitive and application timing is especially crucial. Applications submitted during the peak three-day window at the beginning of January for jobs with start dates of April 1 or later are randomly assigned to groups, with those in Group A processed first. In 2021, 5,403 applications requesting more than 96,888 positions were received during the three-day peak filing window at the start of the year.
Certain H-2B workers are exempt from the cap. These include workers hired for certain fish roe positions along with workers already in the United States on an H-2B visa who extend their stay, change employers, or change the terms and conditions of their employment.
The Housing Requirement
Certain rules and regulations are unique to either the H-2A and H-2B programs, which are administered by the Department of Labor (DOL) and Department of Homeland Security (DHS). One of the most significant differences is that, while the H-2B program has no housing requirement, employers must provide housing for H-2A workers who are not reasonably able to return to their residence within the same day. Workers can be put up in employer-owned housing facilities or rental housing that is available to the public, such as apartments or motel rooms, with all housing-related charges covered by the employer.
There are many requirements for the housing. Generally speaking, workers must each have their own bed and an area to store their clothing and belongings, with at least 100 square feet for each occupant, of which at least 50 feet must be in the sleeping area. Employers must either provide convenient cooking and kitchen facilities, where H-2A workers can prepare their own meals, or give the workers three prepared meals daily. If the latter, the cost of the meals can be deducted from the workers’ pay up to an amount specified by the Department of Labor.
Similar Application Process
Despite these differences and other, less significant variations, the two programs have much in common. The application process entails the same basic steps. First, the U.S. employer or agent must apply to the DOL for temporary labor certification. The DOL will be looking to verify that domestic workers will not be harmed by the company hiring foreign national workers. Besides demonstrating that the work is, in fact, temporary, the employer will need to show that it tried and failed to recruit workers domestically, and that hiring foreign national workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Once the labor certificate is received, the employer must file Form I-129, Petition for Nonimmigrant Worker with U.S. Citizenship and Immigration Services (USCIS). The employer can include multiple foreign national workers on the same petition.
Once the employer’s petition is approved, foreign national workers will be notified to apply for their visa with the U.S. Department of State (DOS). This step has traditionally included an interview at a U.S. embassy or consulate in the worker’s country, but due to pandemic-related backlogs, DOS has temporarily authorized consular offices to waive in-person interviews for H-2A and H-2B visa applicants (among others) who meet certain criteria.
List of Countries
H-2A and H-2B visas are only available to nationals from a list of about 80 eligible countries, which is regularly updated. The list of countries for the two programs is nearly identical, with a few exceptions. Nationals of Paraguay can participate in the H-2A program but not the H-2B program, while Mongolia and the Philippines are only approved for the H-2B program.
Period of Stay
Both H-2A and H-2B visas are typically approved for the length of the labor certificate and may be extended in one-year increments. An individual can remain in either the H-2A or H-2B status for up to three years.
Same Rules for Family Members
The spouse and unmarried children under age 21 of H-2A or H-2B visa holders may seek admission under the H-4 nonimmigrant classification. However, this status will not permit them to work in the United States.
We Can Help
Whether you are an employer looking to hire temporary workers or a foreign national worker with a job offer from a U.S. employer, the employment-based visa lawyers at Bolour/Carl can expertly guide you through the complex H-2A or H-2B visa processes, assisting with timely and thorough submissions of all necessary forms and materials and helping to ensure a successful application. Contact Bolour/Carl Immigration Group at 323-857-0034 or [emailprotected].
