H-2B Visa

The H-2B visa program allows U.S. employers to hire foreign workers for temporary non-agricultural jobs for seasonal, peak-load, or one-time occurrences. Employers may only fill jobs with foreign workers only after showing no qualified U.S. workers are available, and that hiring foreign workers will not negatively affect the wages or working conditions of similarly employed U.S. workers. Congress has imposed an annual numerical limit of 66,000 H-2B visas per fiscal year. However, Congress has also supplemented the numerical cap with additional visas (also known as “supplemental cap”) over the past few years.

Depending on the minimum requirements of the position, beneficiaries must show that they are qualified for the job through documentation.

Key Requirements for Employers

1. Labor Certification: Employers must obtain a temporary labor certification from the Department of Labor (DOL), confirming there is no sufficient U.S. labor pool for the job and that the employment of foreign workers will not adversely affect U.S. wages or working conditions.
2. Prevailing Wage: Employers must pay at least the prevailing wage (the highest of federal, state, or local minimum wages or the actual wage offered) for the duration of the employment. This wage must not be based on piece rates, commissions, or other incentives unless a guaranteed wage equal to or exceeding the prevailing wage is offered.
3. Job Opportunity Details: Employers must maintain a bona fide full-time temporary position of at least 35 hours weekly.
4. Recruitment: Employers must recruit U.S. workers for the job by summarizing the main requirements in a job order submitted to State Workforce Agencies (SWAs), who then refer qualified US applicants. The Department of Labor also posts the temporary job opportunity on the SeasonalJobs.dol.gov website, and the employer must hire qualified U.S. workers who apply before the job starts, rejecting U.S. applicants only for lawful, job-related reasons.
5. Transportation and Housing: Employers must provide transportation and subsistence costs, including return transportation for workers who complete their contract or are dismissed early. Inbound travel expenses should be reimbursed after 50% of the job period.
6. Tools and Equipment: Employers must provide all tools, supplies, and equipment necessary for workers to perform their job duties at no cost.
7. Compliance with Wage and Hour Laws: Employers must track and report workers’ earnings and hours worked and provide pay stubs. They must also adhere to local, state, and federal employment laws, including health and safety regulations.
8. No Discrimination or Retaliation: Employers cannot discriminate against workers for asserting rights or participating in protected activities under the INA or DOL regulations. They must ensure that H-2B workers and U.S. workers are treated equitably in terms of wages, terms of employment, and working conditions.
9. Post-Hire Responsibilities: If an H-2B worker separates from the job early, the employer must notify the DOL and DHS within two days and provide return transportation, unless the worker has been transferred to comparable employment.
10. Return Requirement: Workers must return to their home country after their authorized stay ends unless sponsored by another employer.

Additional Provisions

• Corresponding Employment: The regulations require employers to treat both H-2B workers and U.S. workers performing similar tasks (corresponding employment) in the same manner regarding wages, working conditions, and benefits.
• No Layoffs: Employers cannot lay off similarly employed U.S. workers within 120 days before or after the employment period unless they offer the positions to the displaced U.S. workers.
• Contractor Restrictions: Employers cannot hire H-2B workers from third-party contractors without ensuring that no displacement of U.S. workers has occurred.

Legal and Documentation Requirements

• Employers must maintain three-year records concerning the labor certification process, recruitment efforts, wages, and other employment conditions.
• Non-compliance penalties: Employers who fail to comply with the regulations face penalties, including fines or ineligibility for future H-2B certifications.

These guidelines are designed to ensure the fair treatment of both U.S. and H-2B workers while maintaining the integrity of the H-2B program. The team at The Bernard Firm will assist employers in staying up to date with any changes in the regulations and ensure full compliance to avoid penalties and legal complications.

What Employers Need to Know About the H-2B Visa Program

The H-2B visa allows U.S. employers to bring in foreign nationals to fill temporary, seasonal,  non-agricultural jobs when qualified domestic workers are unavailable. The program is vital for landscaping, hospitality, and construction industries, where seasonal or peak-load labor demands cannot always be met locally. However, employers must follow strict regulatory procedures to ensure compliance with wage laws, recruitment standards, and recordkeeping obligations.

Participating in the program requires more than submitting forms—it involves demonstrating a legitimate temporary need, maintaining fair labor practices, and avoiding the displacement of U.S. workers. Employers who fail to meet these expectations risk penalties or future ineligibility for certification.

Establishing a Legitimate Temporary Need

One of the foundational requirements of the H-2B visa process is proving the temporary nature of the employment. The Department of Labor recognizes four types of temporary need: one-time occurrences, seasonal needs, peak-load needs, and intermittent needs. Supporting documentation might include historical staffing records, customer demand projections, signed contracts, or business expansion schedules.

In addition, the offered position must be full-time, meaning at least 35 hours per week. Temporary jobs that extend indefinitely or lack a defined end date do not qualify. Employers must ensure all job descriptions and supporting documents align with these limitations to avoid certification delays or denials.

Wages, Recruitment, and Job Order Accuracy

A central tenet of the program is wage protection. Employers must pay the highest applicable wage, whether it is federal, state, or local minimum wage, or the prevailing wage determined for the role. This wage must apply equally to H-2B visa holders and comparable U.S. workers and remain effective throughout employment.

Recruitment is another critical requirement. Employers must list job openings with their State Workforce Agency (SWA) and on the federal SeasonalJobs.dol.gov website. All advertising must include accurate job titles, duties, start and end dates, and wage information. Failing to include mandatory details or rejecting U.S. applicants without lawful justification can lead to certification withdrawal or legal consequences.

Employers must retain evidence of recruitment efforts and show that no qualified U.S. workers were willing, able, and available to perform the job when it was offered.

Equal Treatment and Compliance Obligations

Employers are legally obligated to treat H-2B visa workers and U.S. workers performing similar jobs equally in terms of wages, hours, tools, and workplace safety. This includes complying with all applicable health, housing, and labor standards. If housing is provided, it must meet all legal health and safety criteria.

Employers must also reimburse workers for inbound travel costs once 50% of the job period has been completed. They are required to keep accurate payroll records, time logs, and proof of benefits provided. These records must be preserved for at least three years in case of a Department of Labor investigation or audit.

A knowledgeable H-2B visa attorney can assist in developing compliance checklists and ensuring every obligation is met during and after employment.

Employer Responsibilities After Hiring

Even after employment begins, reporting duties remain active. If an H-2B visa worker leaves the job—either voluntarily or involuntarily—the employer must notify both the Department of Labor and the Department of Homeland Security within two business days. They must also offer return transportation if the employee completes at least half of the work term, unless termination is for cause.

Additionally, employers may not lay off similarly employed U.S. workers within 120 days before or after the foreign worker’s employment period unless they offer the job to those laid-off workers first. These protections are built into the program to ensure foreign labor is used only when necessary and never at the expense of qualified domestic employees.

Employers who fail to follow these rules may face civil penalties, loss of future filing privileges, or formal employment practices audits. Involving an H-2B visa lawyer can help employers meet their obligations while preserving access to seasonal labor support in future years.

Frequently Asked Questions

Can the H-2B visa be used for part-time jobs?
No. The position must be full-time and require at least 35 hours of work per week throughout the certified employment period.

Is it possible to extend an H-2B visa?
Yes, but only under certain conditions. Extensions are limited, and the total stay in H-2B status, including all renewals, may not exceed three years.

Are employers responsible for providing housing?
Not by default. Unlike the H-2A program, housing is not mandatory. However, if housing is offered, it must meet legal standards and cannot be used to discriminate.

What if a U.S. worker applies during recruitment? Employers must hire any qualified U.S. worker who applies before the foreign worker starts unless the employer can lawfully demonstrate that the worker is not qualified for the job.

Start Your H-2B Visa Process with Confidence

If your business relies on seasonal or peak-load labor, The Bernard Firm is here to help you meet your staffing needs through the H-2B visa program. We provide experienced legal support to guide you through every step—from labor certification to compliance and petition filing—ensuring your business stays productive and fully compliant. Contact us today to speak with an H-2B visa attorney, ask questions, or begin your application process.