H-2B: Non-Agricultural Occupation
The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer must file a Form I-129, Petition for Nonimmigrant Worker, on a prospective worker’s behalf.
To qualify for H-2B nonimmigrant classification:
• The employer must establish that its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as permanent or temporary. The employer’s need is considered temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need
• The employer must demonstrate that there are not sufficient U.S. workers who are able, willing, qualified, and available to do the temporary work
• The employer must show that the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers
• Generally, a single, valid temporary labor certification from the U.S. Department of Labor (DOL), or, in the case where the workers will be employed on Guam, from the Governor of Guam, must be submitted with the H-2B petition. (Exception: an employer is not required to submit a temporary labor certification with its petition if it is requesting H-2B employment in a position for which the DOL does not require the filing of a temporary labor certification application)
There is a statutory numerical limit, or “cap,” on the total number aliens who may be provided H-2B nonimmigrant classification during a fiscal year.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap. For additional information on the current H-2B cap, seewww.uscis.gov/h-2b_count.
H-2B Eligible Countries List
H-2B petitions may only be approved for nationals of countries that the Secretary of Homeland Security has designated, with the concurrence of the Secretary of State, as eligible to participate in the H-2B program*.
The list of H-2B eligible countries is published in a notice in the Federal Register (FR) by the Department of Homeland Security (DHS) on a rolling basis. Designation of countries on the H-2B list of eligible countries will be valid for one year from publication.
Effective January 19, 2010, nationals from the following countries are eligible to participate in the H-2B Program: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, Indonesia, Ireland, Israel, Jamaica, Japan, Lithuania, Mexico, Moldova, the Netherlands, New Zealand, Nicaragua, Norway, Peru, Philippines, Poland, Romania, Serbia, Slovakia, South Africa, South Korea, Turkey, Ukraine, United Kingdom and Uruguay. See 75 Fed. Reg. 2879-80 (Jan. 19, 2010).
* A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the Secretary of Homeland Security determines that it is in the U.S. interest for that alien to be the beneficiary of such a petition. [See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.]
Period of Stay
Generally, USCIS may grant H-2B classification for the period of time authorized on the temporary labor certification (usually authorized for no longer than one (1) year). H-2B classification may be extended for qualifying employment in increments of up to one (1) year. The maximum period of stay in H-2B classification is three (3) years.
An individual who has held H-2B nonimmigrant status for a total of three (3) years is required to depart and remain outside the United States for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant. See 8 CFR 214.2(h)(13)(iv) for further details on departure requirements.
Family of H-2B Workers
Any spouse and unmarried children under 21 years of age of an H-2B worker may seek admission in H-4 nonimmigrant classification. Family members in H-4 nonimmigrant classification may not engage in employment in the United States.