H-2 Temporary or Seasonal Work Visa (H-2A and H-2B)

The H-2 Visa is a non-immigrant visa category that allows employers to bring temporary workers to the United States to fill a job opening for up to one continuous year. The job must be a one-time, need-based opening caused by not having enough workers available in the United States. It could also be fulfilling a temporary or cyclical need, like planting which only happens in certain seasons. Once the authorized stay period of the visa is fulfilled, the holder of the H-2 visa should return to their home country.

The H-2 Seasonal or Temporary visa is divided into two categories, called the H-2A Agricultural Workers Visa and the H-2B Non-Agricultural Workers Visa. Farmers in the United States may have a workforce shortage in planting and harvesting seasons, and they can take advantage of the H-2A visa. The H-2B visa is available for foreign workers in non-agricultural industries, such as construction, hospitality, etc.

The employer must play a vital role in helping the foreign worker obtain this visa. Other work visas that require the employers to file a petition for approval include the H-1B Visa, L-1 Visa, EB-1A, EB-1B, EB-1C, EB-2, EB-4, etc. You will find more details on the H-2 visa application and other necessary information.

Eligibility Criteria of the H-2 Visa

There are requirements expected from both the US employer and the foreign worker to qualify for the H-2 visa. Both parties need to understand these requirements and collaborate to meet them to stand a better chance of approval for the visa application.

Qualifications for Foreign Workers

• The foreign worker applying for the H-2 visa must have the necessary skills, training, or experience to function effectively in the US job they are applying for.
• The applicant must acknowledge that the employment and stay in the US are only valid for the duration approved.
• For any foreign worker to be considered for the H-2 visa by an employer, the employer must prove there is a shortage of qualified US workers to fill the position.

Requirements for US Employers

• The employer must give a formal job offer to the foreign worker expected to own the H-2 visa.
• The wages and other benefits attached to the employment must match or exceed the local industry standards of other workers of similar positions.
• The employer must demonstrate that the hiring is seasonal or temporal.
• The employer must obtain a labor certification to prove a shortage of qualified US workers available to fill the position.

Types of H-2 Seasonal Work Visas

The H-2 Visa has two major categories: the H-2A visa for foreign agricultural workers and the H-2B visa for foreign non-agricultural workers.

H-2A Visa: Agricultural Workers 

The H-2A non-immigrant visa program was designed for foreign workers looking to work in the agricultural sector in the United States.

• The H-2A visa is strictly for seasonal or temporary work in the US agricultural sector.
• Employers must prove that they are not able to fill the position with US workers.
• They must also obtain a labor certification from the DOL to support the stand that there are no available US workers before filing the H-2A petition.
• The employers must provide the foreign worker with befitting living conditions.
• There is an unlimited amount of H-2A visas issued in a year, so there is no cap like the H-1B Visa, H-2B Visa, some categories of the J-1 Visa, or the O-1 Visa.

H-2B Visa: Non-Agricultural Workers

Other foreign workers looking to work temporarily or for a season in the US outside the agricultural sector can get the H-2B visa. Unlike the H-2A Agricultural visa, the H-2B category covers various industries like landscaping, construction, hospitality, etc.

• Unlike the H-2A, there is an annual maximum number of issuable H-2 visas. The visa cap is split into two halves within the year;
  • First, October 1 to March 31
  • Secondly, from April 1 to September 30
• Employers are obligated to pay the prevailing wage of the foreign worker without negatively affecting the wages of US workers.
• Like the H-2A visa, the employer must get a labor certification from the DOL before filing the H-2B petition.

There may be other conditions particular to the visa types not mentioned above. An immigration professional can provide wholesome details on the visa, requirements, and other peculiarities to an employer or foreign worker.

H-2 Visa Application Process

The process varies based on whether the foreign worker is agricultural or non-agricultural. The number of visas available under the H-2 Temporary of Seasonal Work Visa category is limited, and there are restrictions on what countries are allowed. Note that some workers can apply to change their status once they move to the US.

Here, we will attempt to cover the general steps in applying for an H-2 seasonal work visa. These steps are categorized into two, to be taken by the foreign worker and the employer, and the outcome is dependent on following it through. However, there may be peculiar steps that may need to be taken in unique conditions. In such cases, it is crucial to seek the services of an experienced immigration attorney to help with the process.

For Employers

1. The employer must offer the foreign worker a job to fill the position with a shortage of US workers.
2. To prove the shortage, the employer will obtain a temporary labor certification from the DOL.
3. After obtaining labor certification from the DOL, the employer will file an official petition for the H-2 visa with USCIS. The Petition for Nonimmigrant Workers (Form I-129) includes details of the employer, the foreign worker, and the job.
4. If the petition is approved, USCIS will issue a Notice of Action (Form I-797). The approval notice and the foreign worker’s visa application are to be submitted to consulate by the employer for entry visa.
5. After the foreign worker has finished their part of the process and gotten the H-2 visa, the employer and the foreign worker can collaborate on ensuring adequate travel arrangements and resumption of employment.

For Foreign Workers

1. The foreign worker will receive a job offer and labor certification from a potential US employer.
2. The foreign worker will provide personal and background information online while filling out the DS-160 (US visa application) form.
3. After submitting the DS-160 form, the foreign worker must schedule an appointment for the H-2 visa interview.
4. At the visa interview, the foreign worker will provide the necessary documents and the approved Form I-129 petition at their home country’s US consulate, where the officer will check for eligibility.
5. If the visa application is approved, the foreign worker can travel to the United States and resume employment.

Labor Certification for Seasonal Work Visa

To get an H-2 Visa, the employer must submit a Temporary Labor Certificate from the United States Department of Labor. The certificate promises that no American worker will lose their job because of the non-US citizens to be hired.

It also promises that non-US workers will be paid the same amount that American workers would for the same job. Once the employer has the Temporary Labor Certificate, a petition must be filed with USCIS verifying that the position is temporary.

Here are some other specifics about the labor certification listed:

• Employers are to have placed various job opening adverts seeking qualified US workers.
• Employers will show evidence that qualified US workers are not showing interest in filling the position.
• The employers must determine the job’s prevailing wage to match or exceed the average wage of employees in the same position within the locality.
• Other documentation to support the labor certification must be gathered and submitted alongside.
• Employers may need to work closely with state workforce agencies to ensure successful completion of the certification process.
• The labor certification process may take time, so employers need to plan for delays if there are any.
• In some situations, there may be waivers to the labor certification for employers.

A chat with our immigration professionals on WhatsApp can help shed more light on every other detail needed for the H-2 process.

Duration and Renewal of H-2 Seasonal Work Visas

The duration of authorized stay in the US for a foreign worker on an H-2 visa depends on whether it is an agricultural (H-2A) or non-agricultural (H-2B) worker. The visas are granted for the necessary period to complete the seasonal or temporary work, with a maximum of one year.

Before the expiry of an H-2 visa, the employer of the foreign worker can apply for a renewal. Here are some steps in the renewal process:

1. As initially filed when the foreign worker was to be employed, the employer will file a new Form I-129, Petition for a Non-immigrant Worker, with USCIS.
2. Provide evidence of a continual need for foreign workers to fill the position temporarily or seasonally.
3. Employers of H-2A visa holders are to obtain another labor certification from the DOL.
4. The details of the petition for renewal must be consistent with the initial petition filed for the expiring H-2 visa issuance.
5. The H-2 visa renewal petition must be filed well ahead of time to avoid the visa from expiring when the renewal hasn’t been approved.
6. Despite being renewable, the H-2 visas still have a maximum extension period.

Contact CFUIS – H-2 Visa Lawyer

The process of obtaining an H-2 Visa is very difficult even for experienced immigration attorneys, and there is a high demand for visas under this category. Employers and workers must plan ahead to be able to receive visas. We can help you file the right forms at the right time and answer any questions you may have. Call us today at 813-298-7222, email us, fill out our contact form, or schedule an appointment.