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Can Your Business Qualify to Hire H-2A or H-2B Visa Workers?

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For many businesses in the United States, labor shortages are a concern. Employers may have a hard time finding enough local workers for open positions, especially in demanding sectors like agriculture, meat processing, or forestry. In some industries, there are peak times when extra workers are needed, even if there are U.S. employees available.

Hiring foreign workers through the H-2A or H-2B visa programs is one way to access a broader talent pool. These non-immigrant visas help employers fill temporary or seasonal positions when you need an extra helping hand.

What are the differences between the H-2A and H-2B programs?

Both the H-2A and H-2B programs allow qualified organizations and businesses to hire foreign workers in situations where American workers are not available, able, or willing to fill an empty role.

The H-2A visa is for farms and businesses that need temporary or seasonal agricultural labor. This program can be used to hire workers for harvesting, cultivating, or planting crops. It can also be used for jobs related to range herding or livestock. The H-2B visa program is for temporary non-agricultural labor, so workers in this category may be in construction, landscaping, seafood and meat processing, forestry, tourism, and other sectors.

What are the qualifications for businesses wishing to employ foreigners using these programs?

Businesses who wish to hire either H-2B workers must meet the regulatory qualifications. This means companies must prove that they are hiring workers in the right category and that their hiring of non-U.S. workers will not hurt American wages or work conditions.

Employers must show they have a need for temporary labor, not an ongoing worker.
Companies must show they need temporary agricultural workers (for the H2-A visa) or temporary non-agricultural workers (for the H2-B visa).
Employers must show their hiring of foreign workers on a temporary basis will not adversely impact the working conditions or wages of U.S. workers in similar jobs.
For seasonal or temporary agricultural workers, employers must offer housing and transportation which meets government guidelines.
Employers must show there are not enough U.S. workers for the job and must secure labor certification from the Department of Labor.
Employers must hire workers from the lists of eligible countries.

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In addition to these general eligibility rules, there are specific H-2A and H-2B qualifications unique to each visa program. For example, for the H-2A visa, employers must hire foreign workers for up to one year on a full-time basis, with a maximum stay of three years. In addition, employers of H-2A workers must offer daily transportation and meals or kitchen facilities. Further, employers must pay at least three-fourths of the contract period, even if the work does not take the full contract period. For H-2B visas, the length of stay depends on the job period. Usually, length of stay is limited to 10 months though extensions of up to one year at a time are available, with a maximum stay of three years in total (depending on the type of need).

Is there a cap?

The H-2B visa has a yearly cap of 66,000, which is divided into two cohorts. This means a maximum of 33,000 visas are available for workers who begin their jobs from October 1 through March 31 and another 33,000 visas are available for those who start work from April 1 through September 30. Some workers who are processors, technicians, or supervisors in fish roe processing are exempt from this cap, as are employees in Guam or the Northern Mariana Islands.

The H-2A visa does not have a cap.

What’s the process like?

The process for hiring H-2A or H-2B workers can be broken up into three parts. First, you need to get labor certification, then petition for classification, and finally hire workers, all while staying compliant with H-2B or H-2A qualifications.

Secure temporary labor certification. Employers will need to apply for and receive a labor certification from the Department of Labor. The Department of Labor will examine whether the employer is paying a prevailing wage and whether efforts have been made to recruit American workers.
Submit Form I-129. After an employer has secured a temporary labor certification, they will need to submit Form I-129 to the United States Citizenship and Immigration Service (USCIS).
Find and hire workers. Once USCIS has approved an employer, the employer can start seeking workers from the list of approved countries the USCIS has posted. Both H-2A and H-2B workers must be hired from qualified countries. The company or business will need to find the right workers for their needs and extend a job offer.

Once the process is complete, the worker should take steps in his or her home country. The worker coming into the U.S. will need to apply for the visa in the home country and will have to attend an interview in a U.S. consulate or embassy. The worker may also need to show that they do not intend to come to the U.S. permanently.

How can Farmer Law help?

Employers who are considering hiring foreign workers for temporary work usually are very busy, and Farmer Law can help with the immigration side of the equation, paving the way for a smoother hiring experience. USCIS forms and the visa process can also be complex, and any delays can mean labor shortages and business challenges. Many businesses, farmers, and organizations turn to Farmer Law for timely and efficient help with hiring the foreign workers they need.

We can take care of the whole process, from application to helping you determine which visa program is best for your hiring needs. We keep you compliant and if there is ever any issue, such as an audit or denial of a petition, we can help with that, too. Our goal is to make it easier for you to hire the foreign workers you need so you can focus on growing your business.

If you have questions about the H-2A or H-2B visa or if you have other concerns about the immigration process, contact Farmer Law for a consultation. We’re here to help.

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The attorneys at Farmer Law PC understand the value of a diversified workforce and are adept at navigating every facet of immigration law. We offer comprehensive solutions for all of your labor shortages. Our team locates honest, accomplished workers to provide employers with exceptional talent from every corner of the globe.