The H-2B visa program continues to be an essential tool for U.S. employers facing seasonal or peak-load labor shortages. In a recent webinar hosted by our team, we discussed the fundamentals of the program, common challenges, and strategies that employers can use to improve their chances of success.

H-2B Basics and Eligibility

The H-2B program allows U.S. employers to temporarily hire non-immigrant workers for non-agricultural roles. This includes industries such as landscaping, hospitality, construction, and seafood processing. The primary goal is to provide relief during periods of increased demand when the domestic workforce is insufficient.

To qualify, employers must demonstrate a temporary need, which may be seasonal, intermittent, or due to a one-time occurrence. Understanding this requirement—and supporting it with proper documentation—is critical to a successful petition.

Why Planning Ahead Matters

Early preparation and planning is key and employers considering the H-2B program should consult with legal counsel as soon as possible. The H-2B program is competitive, and demand often exceeds the number of visas available. Employers who begin the process well in advance are better positioned to secure workers.

Preparation includes:

• Submitting a prevailing wage request several months before the desired start date.
• Coordinating internally to gather necessary business and project documentation.
• Ensuring alignment between the legal team and business leaders on strategy and timelines.

Because the government allows petitions to be filed up to 90 days before the employment start date, employers must work backwards from their projected need to avoid delays.

Navigating Timelines and Documentation

Prevailing wage determinations typically take 60 to 75 days to process. During that time, employers and their legal teams should not remain idle. Instead, they should be preparing support letters, finalizing project lists, and securing signatures on key forms. This proactive approach helps ensure a smooth submission once the prevailing wage determination is issued.

Another critical factor is the filing window, which generally opens 75 to 90 days before the requested start date. Missing this window can significantly reduce the likelihood of approval.

Common Employer Pitfalls

Employers often face challenges, including:

• Underestimating preparation time and leaving key steps until the last minute.
• Misalignment of job roles: For example, requesting workers for positions that do not clearly meet H-2B requirements.
• Documentation gaps that lead to Requests for Evidence (RFEs) from the government, slowing the process.

Avoiding these pitfalls requires careful planning, clear communication with counsel, and attention to detail throughout the application cycle.

Special Considerations: Transitioning from H-2A to H-2B

Transitioning workers from H-2A (agricultural) to H-2B (non-agricultural) status can be a complex process. While technically possible, this process requires additional proof, such as job orders, pay records, and worker resumes, to show that the worker qualifies for the new role. Employers facing this scenario should expect closer government scrutiny and be prepared to provide thorough documentation.

Key Takeaways

The H-2B program can be a powerful staffing solution for businesses with seasonal labor needs—but only if approached strategically. Employers who succeed typically:

• Work closely with their legal team to meet deadlines.
• Begin planning months in advance.
• Provide complete, well-documented applications that anticipate potential government questions.

At Farmer Law PC, we guide employers through this complex process. Whether you are exploring the H-2B program for the first time or refining your approach for an upcoming season, preparation and partnership are the keys to success.

Do you need assistance with your company’s H-2B program? Contact us today to learn how we can help.