If your business is facing seasonal or other short-term staffing needs, or economic uncertainty is impacting your permanent hiring decisions, H-2 visas for temporary workers may be the answer.

The need for labor is considered to be temporary if it is:

  • A one-time occurrence: The employer has not employed workers for labor in the past and will not need to hire workers to perform the labor in the future, or that a temporary event of short duration has created the need for workers.
  • Seasonal: The need for service or labor is tied to a season of the year or event/pattern and is of a recurring nature.
  • Peak load: The employer needs to supplement their permanent staff due to a seasonal or short-term demand, and these temporary additions will not become part of regular operations.
  • Intermittent: The employer has not hired workers to perform the services or labor and occasionally or intermittently needs workers for short periods.

H-2 Visa Options

There are two H-2 visa options to consider based on your industry.

H-2A visas are appropriate for any agriculture-related industry requiring temporary or seasonal help and allow workers to remain in the U.S. for one year, but employers can request extensions annually for up to three years. At the end of three years, the worker must leave the U.S. before seeking readmission. There are no government caps on the number of H-2A visas allowed each year.

H-2B visas are used for many industries and allow workers to remain in the U.S. for up to three years, and, like the H-2A visa, the worker must leave the U.S. before seeking readmission. Also, the government caps the number of H-2B visas allowed each year, and eligible workers are selected via a lottery.

Both types of H-2 visa holders are entitled to prevailing wages and standards of employment, worker’s compensation benefits, as well as certain housing and education benefits for them and their families. The spouse and children under 21 years of age of H-2 visa holders may seek admission on H-4 visas but are not eligible for employment.

To obtain either type of H-2 visa, an employer must show that:

  • The job is temporary or seasonal in nature;
  • There are not enough U.S. workers who are able, willing or qualified to do the job;
  • Employment of foreign temporary workers will not negatively affect the wages and working conditions of U.S. workers who are at a similar job; and
  • The visa holder intends to return to his or her home country after the expiration date.

Meeting these requirements is integrated into the application process for both types of H-2 visas.

H-2A Visa Process

The H-2A process should be started 60 to 75 calendar days before the job’s start date. The process involves these basic steps:

  • Employers must submit job orders to the DOL’s National Processing Center, which in turn sends it to the respective state workforce agency that serves the area of intended employment for intrastate clearance.
  • The state workforce agency initiates recruitment of U.S. workers in collaboration with the employer, providing employers with recruitment steps to take.
  • Employer submits temporary labor certification application to the U.S. Department of Labor (DOL).
  • After receiving a temporary labor certification from the DOL, the employer submits Form I-129 to U.S. Citizenship and Immigration Services (USCIS).
  • Upon USCIS approval of Form I-129, prospective H-2A workers who are outside the United States must:
  • Apply for an H-2A visa with the U.S. Department of State at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
  • Directly seek admission to the United States in H-2A classification with CBP at a U.S. port of entry if a worker does not require a visa in cases where an H-2A visa is not required.

H-2B Visa Process

The H2-B process should be started at least 150 calendar days before the job’s start date. This visa type’s process includes all of the above but also requires employers to first obtain a prevailing wage determination from the DOL’s National Prevailing Wage Center (NPWC) before applying for temporary labor certification. The DOL determines the prevailing wage for the particular role and the employer must agree to pay at least that wage. Employers for H-2B workers must include the DOL’s prevailing wage determination in their application for temporary labor certification.

Common Challenges to Launching a Temporary Workers Program

While we have simplified launching a temporary workers program, employers often face significant challenges, including:

  • Filing required documentation correctly;
  • Dealing with USCIS denials or requests for evidence; and
  • Effective candidate assessments to qualify eligible workers.

BAL’s experienced immigration attorneys Ashley Foret Dees and Jeff Joseph can provide straightforward counsel on successfully navigating the H-2 visa processes. Get the temporary help your business needs on your terms, from assessing candidates to managing the documentation and responding to government agencies, ensuring compliance and reducing risk.