H-2A vs H-2B: Who Should I Hire?

The Immigration and Nationality Act (INA) allows the temporary admission of agriculture and non-agricultural workers into the U.S. The H-2A and the H-2B visa program help businesses meet their labor needs.
Nationwide, employers are facing a labor shortage and one of the hardest hit industries are agricultural, landscaping, food processing, livestock, and construction businesses. Farmers, dairies, food processors, and other company owners are struggling to find laborers to meet their workforce needs.

The latest job data provided by the U.S. Bureau of Labor Statistics shows that American workers are more willing than ever before to walk away from jobs and quickly switch employment.

The U.S. Labor Department’s Job Opening And Labor Turnover Survey shows that in August 2021, there were 10.4 million job openings and the quits rate rose to 4.3 million which is one of the highest in over two decades. The dire job market data shows the reality of a lack of workers to meet the needs of business owners nationwide.

Whether you are operating an agricultural or nonagricultural business, the solution to your labor shortage woes might be the H-2A or H-2B visa programs.
The H-2A and H-2B visa programs are designed to provide legal, efficient, and dependable workers. Both programs have their own set of criteria.

History of Foreign Temporary Workers in the U.S.

Employers in the United States have historically depended on foreign temporary workers (often referred to as guest workers) to meet their workforce needs when labor shortages occurred. Guest workers were quite common during times of war when there was a severe shortage in the labor market.

The Bracero program was launched during World War II and was in effect until 1964. During the time, several million Mexican agricultural workers were brought into the country. 

Nowadays, the Immigration and Nationality Act (INA) allows agricultural and nonagricultural workers to enter the country through the H-2A and H-2B visa programs.

H-2A vs. H-2B Visa Programs

H-2A and H-2B workers fill positions that do not require a great deal of formal education.

  • H-2A workers perform temporary or seasonal agricultural work, livestock production and some herding positions. This program is ideal for small family farms or large agricultural producers. H-2A visa recruitment agencies, such as AW Labor Solutions, help employers navigate the intricate waters to effectively use the program so your business can grow and thrive. The H-2A visa is for seasonal or temporary agricultural job positions only.
  • H-2B workers perform temporary jobs in certain fields such as meat/seafood processing, construction, and landscaping. The program is available to nonimmigrant foreign workers to fill non-agricultural positions. The H-2B visa is for non-agricultural temporary job positions only.

AW Labor Solutions understands the intricacies of the visa programs and can work closely with regulatory agencies to help employers obtain a legal workforce.

Examining the H-2A Visa Program
The H-2A visa program is a non-immigrant visa that lets agricultural employers hire foreign workers to fill their seasonal labor needs. Whether you run a small family farm or a large ag business, an H-2A visa program can help you grow your workforce when you need the help the most.

Any U.S. agricultural producer or employer can use the H-2A program to hire workers if there is a shortage of American workers to fill the temporary or seasonal positions.

Employer requirements for the H-2A compliance includes:

  • Operate or own an U.S. based agricultural business.
  • Hold a valid Federal Employer Identification Number (FEIN).
  • Display the ability to hire, supervise, pay, and terminate employees.
  • Required labor must all be agriculture related such as harvesting, cultivating or production of crops.
  • Position must be full-time seasonal or temporary (at least 35 hours per week or more)
  • Work must be tied to a particular season, pattern such as harvest or crop growing cycle, or event.
  • The position can last only 10 months or less.

Frequently Asked Questions about the H-2A Visa

Let’s examine a few common employer questions and answers concerning the H-2A visa program.

How long will it take to process an H-2A visa?

At AW Labor Solutions, we know that one of your main concerns is time. You are probably worried about meeting the seasonal needs of your farm so you want to have a time frame for how long it will take if you decide to use workers via the H-2A program. When working with AW Labor Solutions, it can take from two to four months for an H-2A visa process. Rarely, it may take longer.

What agricultural employers qualify for H-2A workers?

You must own or operate an agricultural business and have a job opening that is either seasonal or temporary. The program also requires that you demonstrate that you have tried to successfully fill the job vacancy with a U.S. worker but failed. You can also show that there are simply not enough U.S. workers in your geographic area to meet your agricultural job needs.

How long does the H-2A visa stay valid?

The H-2A visa is a nonimmigrant visa that is temporary. It is typically valid for only one year but, on occasion, an extension is granted. Extensions are often given in one-year increments for up to three years with the H-2A visa being extended twice. However, at the end of the three years, the worker must leave and return to their country and remain there for at least three months before obtaining another H-2A visa.

How much does it cost an employer to sponsor a worker with an H-2A visa?

There are employer fees involved with the H-2A visa program.

The typical breakdown is as follows:

  • $100 application fee
  • $10 per certified work fee
  • $460 USCIS processing fee as of January 2021
  • $400-$650 to transport the worker from their country of origin to the work site.
  • $9,000 to $13,000 per worker to cover living expenses while they are in the U.S. working for the employer.

The above fees might change so please contact AW Labor Solutions for a list of updated H-2A visa fees. Additional fees must also be charged.

H-2A Compliance

As an agricultural business owner, you are probably concerned with H-2A compliance with the U.S. Department of Labor. You’ll want to make sure you understand the H-2A regulations and that you have a firm understanding of your employer obligations.

  • An H-2A worker can only work for your agricultural business or any other growers that have been named and listed on the certified contract.
  • All H-2A workers must work at the location specified on the contract.
  • The workers can only work during the approved time period outlined in the contract.
  • As an employer, you are required to hire all U.S. citizens who apply for your positions during the first 50 percent of the contract period or who apply at your farm and are willing to perform the job.
  • You must ensure that all U.S. workers who perform the same jobs as the H-2A workers have the same rights and protections and vice versa.
  • Once you receive certification to employ H-2A workers then you must give them the same benefits as US workers performing the same job.
  • Upon termination or if the visa holder abandons their employment, you must notify the LOCAL Job Service via writing. Always retain a copy of the notification within the personnel file that you keep for the employee to show as proof of compliance.
  • Workers who complete the season or who are terminated (for any reason but a job-related issue) must be paid their reimbursement for travel.
  • Ask the worker to sign a resignation form before they leave their place of work.

The Cost of Non-Compliance   

As an H-2A employer, it is imperative that you remain compliant because the cost of non-compliance is exceedingly high. You will incur fines associated with the program if you fail to comply. Fines often range from $1,658 to $16,579 for every violation. If there are multiple violations, then the fines can quickly start to add up. Also, the fines can often be multiplied by the number of workers impacted. Fines from a single investigation often exceed $100,000.

There are a multitude of violations that can occur concerning the H-2A. Below are several common infringements.

  • Failure to pay your employees on time.
  • Not providing pay stubs that contain the required information to employees
  • Any form of misrepresentation about the number of workers required for a particular job or time period.
  • Improper recruitment.
  • Not hiring U.S. workers when available in an effort to get more H-2A workers.
  • Providing inadequate housing that does not meet the housing standards.
  • False advertising about the perks of the job and then once the workers are recruited, you fail to provide them with what was promised.
  • Requiring that H-2A workers work in a job that is not included in the job description.
  • Not paying H2A workers comparable U.S. wages.
  • Making the employees pay visa and agent fees.
  • Failing to pay employees for travel costs which causes the wage to dip below the minimum wage required by the Fair Labor Standards Act. H-2A regulations require that employers ensure that costs do not lower the employee’s pay causing it to fall under the minimum wage level per hour during their first week of employment.

Employers who have open range livestock production with cattle, sheep or cots, commercial beekeeping, or itinerant sheep shearing face other special procedures for H-2A compliance.

Examining the H-2B Visa Program

The H-2B guest worker program is an ideal solution for businesses seeking temporary, intermittent, or seasonal workers to fill non-agricultural work positions in the landscaping, retail, food packing, forestry, construction, or restaurant service industries.

The initial creation of the H-2B Visa program was focused on meeting the labor needs of hospitality, seasonal construction, landscaping, carnival, retail businesses, resorts/restaurants, and manufacturing by creating a pool of workers. In some situations, caregiving professionals are also allowed into the U.S. via the H-2B visa program.

Each year, there is only a limited number of H-2B workers allowed to make use of the nonimmigrant visa program. The application process requires great care when completing the required paperwork and the application must be submitted early to give you the greatest edge of possible approval.

The H-2B visa program is a fantastic way for employers to gather a workforce but the application process is not without problems and can be very time consuming. However, businesses working with a recruiting service like AW Labor Solutions can help streamline the process, assist in meeting the regulatory requirements, and reduce the headaches.

H-2B Visa Program Regulatory Requirements

Any employer who wants to fill temporary non-agricultural job positions with H-2B visa holders must meet the program’s regulatory requirements.

With the H-2B visa, the worker can stay in the United States working for a maximum period of three years. Once an H-2B visa holder has stayed for three years, they must depart the country and remain outside the U.S. for at least three months before requesting readmission as an H-2B visa holder again. With the H-2B visa, employers don’t have to worry that the worker can stay for only a fleeting time and then face deportation.  

The length of time that an H-2B visa holder can stay varies based on the employer’s need. In some cases, the H-2B visa holder might only stay a few weeks, but in other situations they can stay for several years. It all depends on the job.

Spouses and Children

With the H-2B visa, the visa holder’s spouse, and minor, unmarried children under the age of 21 can also enter the United States using an H-4 visa.

Employers Applying for the H-2B Visa  

With the H-2B visa, the foreign national cannot actually apply for the visa and enter the United States to work. Instead, they must depend on a prospective employer filing the necessary paperwork to apply for the visa so they can enter the country.

Qualification for an H-2B Visa

In order to hire workers using the H-2B visa program, they must establish the following qualifications: 

  • Show proof that there is a shortage of qualified U.S. workers
  • The employer has failed to find qualified workers.
  • Hiring an H-2B visa holder will not affect the wages or regional working environment of U.S. workers who are also making comparable wages in similar job positions.
  • There is a genuine need for the worker to fill the job position.
  • The job position is temporary, one time, or seasonal (it is not uncommon for U.S. employers to need to enlarge their workforce during peak times).
  • Show the visa holder meets the needs of the employer’s job position.
Obtaining H-2B Visa Holders

Below is a brief overview of the steps needed to obtain H-2B Visa holders to fill your labor needs.

  • Apply at the Department of Labor and Prevailing Wage Determination.
  • Receive an H-2B Visa certification from the Department of Labor.
  • Evaluate the local U.S. labor market and provide proof that shows there are not a sufficient number of American workers to meet your business’s labor needs.
  • Obtain certification.
  • Create a petition that requests the United States Citizenship & Immigration for approval.
  • Gain approval.
  • Make the arrangements to bring the foreign national guest worker into the United States so they can pick up their H-2B visa.

The above concise steps might seem straightforward but they’re actually complex. In addition, only 66,000 visas are issued each fiscal year which takes place between the first and second half of the year. It is imperative that you time your applications process correctly. Also, even with a cap, in some situations an employer can still go forward with the recruitment process due to exemptions.

If, after review, the CNPC decides that your H-2A application does not meet the required criteria, a denial will be issued. The Final Determination letter will outline the reasons for your denial, and give you seven days to request a hearing. If you are denied, you must still retain all the paperwork for at least three years from the date of the denial for your own records.

Ongoing H-2B Employer Requirements

After an H-2B visa is granted then an employer is required to notify the USCIS in two days if the following should occur:

  • The H-2B visa holder fails to report to work within five days after the employment start date.
  • If the visa holder should leave employment without giving notice
  • Any time the visa holder fails to report to work for five consecutive days without obtaining permission from the employer.
  • If the employer terminates the visa holder before the job is complete.
  • The job is completed more than 30 days before the projected end date.

H-2B Compliance

As with the H-2A, the employer must remain compliant with the H-2B visa. The cost of non-compliance can be exceedingly high due to the fines incurred. An H-2B employer who is found to be in non-compliance could face a fine of $6,000 per violation. Also, failing to pay an employee properly is categorized as its own violation. It is not unusual for an employer to face fines that exceed $100,000 because it does not take long for them to add up.  

There are a bevy of violation types. Below is a list of the few of the most common:

  • Knowingly misrepresenting the number of employees needed.
  • Not outlining the correct time period for the job.
  • Failure to actively recruit U.S. workers for the position.
  • Not hiring qualified U.S. workers who apply.
  • Requiring that the H-2B worker works in a place not listed on the certification.
  • Not paying the prevailing wage.
  • Not listing all of the job perks when advertising for U.S. workers.
  • Requesting or demanding that the worker pays for all or part of the visa fee or other fees.
  • Not providing reimbursement for transportation costs, hotel costs, and other travel fees if it takes the employee’s earnings below minimum wage the first week.

Frequently Asked Questions About the H-2B Visa

Below are a few of the most frequently asked questions about the H-2B visa program.

How long does the H-2B process take?

The H-2B visa process can take from 60 to 120 days to complete. Typically, applicants whose visa petition was submitted on the 1st of January can start working in the U.S in June.

Can an H-2B visa holder work two jobs?

No, an H-2B visa holder cannot have a second job. They can only work for the employer who filed the H-2B visa position. Securing a second job is a direct violation of the H-2B nonimmigrant visa policy.

How much does a H-2B visa cost?

As of January 2021,  the USCIS charges a processing fee of $460 for an H-2B petition. Certain other fees are also typically required. AW Labor Solutions can help employers better understand the fees involved in the H-2B visa petition process.

Can an H-2B visa holder get a green card?

Your H-2B visa lets a foreign national work in the U.S. for the employer who has made the visa petition. The H-2B is a temporary nonimmigrant visa and does not allow the worker to gain permanent U.S. residence. The worker can stay only as long as the job lasts (up to three years), and then must return to their home country for 90 days before reapplying for another H-2B visa.

However, in some situations it is possible to become eligible and obtain a green card while working and living in the U.S. The visa holder will need to seek the assistance of an immigration attorney to discover their options.

What is the latest on the H-2B visa?

As mentioned, the cap can be lifted in certain circumstances on the H-2B visa. On May 25, 2021 the Department of Homeland Security along with the Department of Labor issued a temporary rule which increased the cap on the H-2B nonimmigrant visas allowing up to 22,000 visas through the end of the fiscal year.  As an employer, if you work with a recruitment agency like AW Labor Solutions, you’ll be kept up to date on such changes.

How do I become a H-2B sponsor?

If you are an employer that wants to qualify as an H-2B sponsor, then you’ll need to meet the following requirements:

  • Must have a genuine need for seasonal, one-time, or intermittent employees to meet your labor needs.
  • The job period cannot last longer than a year.
  • The employer must show that there are no qualified U.S. workers to fill their labor needs.


If you own an agricultural business, then the H-2A visa program might be the ideal solution to ensure that you can meet your seasonal or temporary labor needs. You’ll want to contact H-2A agents USA based such as the AW Labor Solutions, to help you navigate the visa petition process.

Nonagricultural business owners who are struggling to meet their labor needs will want to explore the H-2B visa program.

Contact AW Labor Solutions to learn more. We partner with businesses to ensure you get the labor and assistance you need for agricultural and nonagricultural positions. Our experienced team knows the H-2A and H-2B visa process to ensure compliance. We can help you grow your business!


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