10 Must-known Facts About the H-2B Visa Program

Employers often depend on the H-2B Federal program to hire foreign workers when there is simply an insufficient number of U.S workers available to meet the workforce demands.
In America, there remains a significant labor shortage for certain jobs and in particular geographic locations. Employers often turn to an H-2B recruiting company to find foreign workers to meet their needs.
The demand for foreign workers continues to grow. The Department of Homeland security has authorized additional H-2B visa allotments for the last several fiscal years to meet the exigency of employers.
In this guide, we will explore the 10 must-known facts concerning the H-2B visa program. A U.S. employer should weigh the considerations to see if hiring foreign workers might prove the solution to their labor shortage.
If you are seeking further information about the program then you can contact an experienced recruiter employment agency H2B visa specialist, such those who work with AW Labor Solutions.
Facts About the H-2B Visa and Foreign Worker Recruitment
All employers considering collaborating with a foreign worker agency should familiarize themselves with the following facts about the H-2B visa and foreign worker recruitment process to determine the suitability of the program.
1. H-2B is a Nonimmigrant Visa
The H-2B is a nonimmigrant visa program used to fill temporary nonagricultural jobs. The federal program lets US employers hire foreign workers if they have demonstrated that there is a shortage of US workers available to fill the labor demands.
To qualify for the H-2B program, the work must meet the following conditions:
  • Non-agricultural
  • Full time (35 hours per week or more)
  • Temporary
  • Seasonal, peak load, one occurrence or intermittent
The U.S. Citizenship and Immigration Services (USCIS) has extremely specific definitions for the types of temporary employment allowed.
  • One-time Occurrence: The job is normally classified as permanent, but an event has made the position temporary (such as the unexpected sickness of the permanent employee who usually performs the position). The position has never been temporary before and will not remain temporary in the future.
  • Seasonal Need: A job that is tied to a season, such as summer construction season in the Midwest, or spring/summer/fall landscaping seasons, or snow season for ski resorts. The position recurs with the seasons. An employer is not allowed to use ‘seasonal need’ to use a foreign worker to substitute for a regular employee who has taken time off such as for a vacation.
  • Peak Load Need: Peak load positions occur whenever there is a need for certain functions such as during a specific season or when there is a spike in demand during the year. This position can occur year after year.
  • Intermittent Need: The employer only has an occasional, short term need for the job.
2. Positions that Qualify for H-2B Workers
Employers turn to the H-2B foreign worker program to fill job openings for temporary positions in the following fields:
  • Construction
  • Landscaping/grounds maintenance
  • Resorts
  • Retail businesses
  • Restaurants
  • Food production
  • Food packaging
  • Hospitality
  • Recreation/amusement
  • Poultry, meat, or fish trimmers or cutters
  • Cooks
  • Nonfarm animal caretaker
  • Maids/housekeeping
  • Freight, material, or stock movers/laborers
  • Forest and conservation workers
  • Food concessions
  • Counter attendants
The H-2B visa program is not used for agricultural work.
3. Leading Industries for H-2B Workers
H2B visa recruitment agencies regularly recruit foreign workers for groundskeeping/landscaping positions. Approximately 40% of all visas issued are for landscaping services which make it the number one industry that regularly turns to foreign workers to fill the labor shortage.
Jobs in forestry are the second leading employer for H-2B visa workers.
Forestry job functions include:
  • Tree planting after fires, hurricanes, or natural disturbances
  • Seed collection
  • Sowing of seeds for future tree growth
  • Clearing trees that function as fuel loads to reduce the risk of wildfires
  • Complete thinning of trees and underbrush
  • Conduct vegetation management

Virtually all seedling replanting in the United States is carried out by H-2B workers. Each year, foreign workers plant approximately 1.55 billion tree seedlings across more than 2.2 million acres of forest. 

4. Employer Requirements to Use the H-2B Visa Program
In order for a U.S employer to use the H-2B visa program to fill their workforce needs, they must prove the following:
  • There is a shortage of American workers located in the geographic area who are willing and able to perform the job requirements.
  • The position is seasonal/temporary/one-time occurrence.
  • Prove that the employer has a genuine need for the foreign laborers.
The employer must actively seek to fill the position with a U.S. worker before hiring foreign workers from the H-2B recruitment agency.
An employer seeking to recruit foreign workers using the H-2B visa program is required to pay for both inboard and outboard transportation along with a daily travel subsistence.
The employer is not required to provide housing or daily transportation. However, if the employer elects to offer transportation they are not allowed to charge the worker.
Employers who decide to offer housing and utilities can deduct a certain amount of the fees from the worker’s pay.
Requirements for foreign workers using the H-2B visa include:
  • Must be a citizen of an eligible country to qualify for an H-2B visa.
  • Have a written job offer from a U.S. employer.
  • Exhibit experience or education to qualify for the position.
  • Intend to return to the worker’s country of origin when the visa expires.
5. Cap Set for the H-2B Visa Program
The federal H-2B visa program is Congressionally capped with only 66,000 visas issued annually.
For the last several fiscal years, the Department of Homeland Security has authorized additional H-2B visas to meet the needs of U.S. employers. Parameters are laid forth to dictate who will qualify for the expanded number of visas. They publish the information under the Final Rule which also contains guidance on how to obtain additional visas.
U.S. employers should never rely on additional visas being released each year. It is always a one-time occurrence that is based on the current situation.
6. When Can a Visa Holder Start Work?
Once the foreign worker receives one of the allotted visas, the worker can start work according to the following:
  • 33,000 visas released Oct 1 allows workers to start work after the first half of the fiscal year.
  • 33,000 released April 1 allows workers to start work after the second half of the fiscal year.
Once an employer is granted approval to hire an H-2B worker and the employee starts work then the employer is required to promptly notify the USCIS if any of the following should occur with the foreign worker:
  • Fails to show up for work within five days after their start date.
  • Does not report to work for five consecutive days without employer approval.
  • Fires or lays off the foreign worker.
  • Completes the job function more than 30 days earlier than the projected completion date outlined on the H-2B petition.
7. Expanded Number of Visas Issued
For the last several years, the USCIS has accepted visa petitions for the H-2B that are exempt from the cap. Exempt workers can change the terms of their employment, or extend their stay.
Supervisors and processors in the fish roe processing industry are exempt from the cap.
Visa holders who perform labor in the Commonwealth of Northern Mariana Island and/or Guam are exempt from the cap.
8. H-2B Processing Time
Employers and workers wishing to obtain an H-2B visa should be prepared to wait to receive the visa. It is not a speedy process and there is no guarantee that a worker will be one of the lucky individuals allotted a visa.
The standard processing time to receive an H-2B visa is 60 to 120 days.
It usually takes 60 days for the Prevailing Wage Determination (PWD) and application to be reviewed so an employer should submit at least 90 days prior. Ideally, the process should start at least 150 days before the expected start date to ensure that the employer obtains the workers they need.
9. Limitations of the H-2B Visa Program
The H-2B visa program does have limitations for employers such as:
  • The position must be temporary.
  • The employment cannot last longer than twelve months.
  • The authorized time of the visa commences whether or not the visa holder is in the United States or their country of origin.
  • Children and spouses of an H-2B worker cannot work in the U.S. but are allowed to accompany the visa holder into the country.
  • Employers are required to meet all requirements to use the H-2B visa program to complete their workforce. The foreign worker employment agency will walk employers through the requirements and the process of using the H-2B visa.
In order to use the H-2B visa program an employer meets each of the legal requirements.
10. Time Allotment and Extensions
The H-2B foreign worker can remain in the United States only for the time outlined on Form ETA-750A. The worker cannot stay longer than 12 months.
At the end of the allotted time, the visa holder can file extensions for up to three years. At the end of each year, the visa holder is required to return to their country of origin for at least three months before reapplying for an H-2B visa.
Conclusion
The H-2B foreign visa program lets employers fill positions in areas where a shortage of U.S. workers exists. If you are interested in the H-2B program, please contact AW Labor Solutions to learn more about foreign worker recruitment.

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Must-Know Facts About the H-2B Visa Program

  1. The H-2B is a nonimmigrant visa program used to fill temporary nonagricultural jobs.(source)
  2. Employers use the H-2B foreign worker program to fill temporary positions in construction, landscaping/groundskeeping, retail business, resorts, carnivals, restaurants, food production, manufacturing, food packaging, resorts, amusement/recreation, forestry, and hospitality.(source)
  3. The number one industry for H-2B workers is groundskeeping/landscaping which makes up 40% followed by forestry which makes up 8% of the H-2B positions. (source)
  4. Employer requirements to utilize the H-2B program include proving that there is a shortage of U.S. workers in the geographic area to perform the job requirements, show that the position is seasonal/temporary/one-time occurrence, and display that they have a genuine need for laborers. (source)
  5. The H-2B visa program has a cap that is set at 66,000 per fiscal year. (source)
  6. Under the cap, the first 33,000 workers start work the first half of the fiscal year (October 1) and the second 33,000 workers start work the second half of the fiscal year (April 1). (source)
  7. For 2022, the USCIS is accepting H-2B visa petitions that are exempt from the cap. Workers wishing to extend their stay, switch employers or change the terms/conditions of their employment. Also processors technicians or supervisors in the fish roe processing industry are exempt from the cap. Workers performing labor within the Commonwealth of Northern Mariana Islands and/or Guam also remain exempt from the cap(source)
  8. The H-2B processing time takes approximately 60 to 120 days. (source)
  9. Employers utilizing the H-2B visa program do have limitations such as the following:
    • The need for the visa holder must be temporary.
    • Employment cannot exceed twelve months.
    • Authorized time for the visa is counted whether or not the visa holder is in the United States or their country of residence when the time period starts.
    • Spouses and children of the H-2B worker cannot work in the U.S.
    • All employers must meet all legal requirements to utilize the H-2B visa program. (source)
  10. The H-2B worker is allowed to remain in the United States for the time period listed on Form ETA-750A. The time cannot exceed 12 months. Extensions are allowed up to three years and then the visa holder must return to their country of origin for a minimum of three months before they can reapply for another H-2B visa. (source)

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