Last Updated on July 24, 2023
What Is the H-2 Visa Category?
Visas in the H-2 category are divided into “A” and “B.” The H-2A visa is used exclusively for agricultural labor or services of a temporary or seasonal nature, while the H-2B visa is used for other temporary work categories. The H-2A temporary agricultural program helps employers who lack available domestic workers to bring foreign workers to the U.S. to perform temporary or seasonal work. H-2A visas are permitted only for temporary employment and cannot be used for work outside of the agricultural sector. U.S. employers and U.S. agents use H-2B visas to fill temporary work positions outside the agricultural industry.
Both visa types have the same validity period. Like the H-1B visa, the H-2B visa is subject to a cap, and visas are released twice each fiscal year. These are just a few differences between H-2A and H-2B visas, but there’s more to learn about both to help you decide which visa is right for your company.
What Is the H-2A Visa?
The H-2A visa is specific to the agricultural sector. With an H-2A visa, an employer can hire qualified workers to enter the U.S. temporarily to work in the agricultural industry. Unlike the H-1B and H-2B visa categories, there is no cap for H-2A visas. Seasonal farm workers and animal caretakers are a few examples of how employers may use H-2A visas.
Foreign nationals from specific countries are eligible to participate in the H-2A Temporary Agricultural program. Some countries eligible for H-2A visas are Australia, Brazil, Canada, Jamaica and Spain. A complete list of eligible countries is available through the USCIS website.
H-2A Visa Requirements
To qualify for an H-2A visa, petitioners must show the following:
- The job offer is temporary or seasonal.
- There are not enough workers in the U.S. who are able, willing, qualified, and who will be available to perform the labor or services.
- Employing H-2A workers will not adversely impact the wages and working conditions of U.S. workers employed in a similar capacity.
Petitioners in the H-2A program should submit a valid temporary labor certification from the U.S. Department of Labor (DOL) with their H-2A petition with USCIS.
Can H-2A Visa Holders Bring Their Dependents?
H-2A workers may bring their spouses and unmarried children under the age of 21. Those dependents may seek admission through the H-4 nonimmigrant classification. Although they may accompany the primary H-2A visa holder, dependents may not work with H-4 status.
How Long Does the H-2A Visa Last?
H-2A visas have a maximum validity of three years. They can be extended in increments of up to one year for a total of three years.
H-2A Visa Application and Filing Fees
The USCIS filing fee for the H-2B petition is a base fee of $460. As of June 17, 2023, the application fee at a U.S. Embassy for H-2B visas is $205.
What Is the H-2B Visa?
The H-2B visa differs from the H-2A visa, a seasonal agricultural worker program. The H-2B program permits U.S. employers to hire nonimmigrant workers to come to the U.S. and perform temporary non-agricultural services or labor. Many temporary jobs in the USA for foreigners require an H-2B visa. H-2B visas are available for all other temporary work outside the agricultural sector.
Amusement/recreation, construction, restaurants, hospitality, landscaping and forestry are a few industries that may use H-2B visas. Although H-2B visas are granted for temporary non-permanent work situations, those categories are further broken down into seasonal, intermittent, peak load or one-time occurrence.
USCIS maintains a list of H-2B eligible countries, which it updates annually in the Federal Register. Some countries eligible to participate in the H-2B program include Austria, Belgium, Greece, Mexico and South Africa. A complete list is available on the USCIS website.
H-2B Visa Requirements
Petitioners should understand several H2 visa requirements before they submit an application. To be eligible for an H-2B visa, petitioners must show that:
- There are not enough U.S. workers who are able, willing, qualified and available to do the temporary work
- Employing workers on an H-2B visa will not affect the wages and working conditions of U.S. workers in a similar occupation
- The employer’s job opportunity must be temporary, full-time and non-agricultural
The employer’s need is considered temporary if it has a(n):
The employer has an employment situation that is not otherwise permanent, but a temporary event of short duration has created a need for temporary workers. Work may also be considered temporary and a one-time occurrence if the petitioner has not employed workers for the service or labor in the past and will not need workers for the service or labor in the future.
Examples of a one-time occurrence may be for an employer who has a one-time need for a caretaker for an elderly family member or a construction company that is refurbishing a church and needs a stain-glass expert, on a one-time basis, to complete a project.
Work is considered temporary if it is a seasonal need. In this case, the work is tied to a particular season by a pattern or event and is recurring in nature. Employers cannot claim seasonal work in the U.S. outside of the season the employee plans to work.
Another limitation to seasonal work in the U.S. for foreigners is that employers cannot claim seasonal work if the work is subject to change, unpredictable, or considered vacation time for permanent employees.
A seasonal need may not necessarily be limited to the traditional four seasons (winter, spring, summer and fall). It could include legal “seasons” (such as a fishing season) and “events” (such as the Christmas shopping season).
Petitioners claiming a peak load need to show that they regularly employ permanent workers to perform the service or labor at their place of employment. They must demonstrate a need to temporarily supplement permanent staff at a worksite due to a higher-volume seasonal or temporary demand. They must also show that the temporary additions to their staff will not become part of the employer’s regular operation.
Petitioners can also show an intermittent need for employment. An intermittent need means that the employer has not hired permanent or full-time employees to perform the labor or services and needs temporary workers intermittently or temporarily to perform labor or services for short periods.
An example of an intermittent need might be a company that produces limited edition products to commemorate a special event, but only occasionally and not on a fixed schedule.
Can H-2B Visa Holders Bring Their Dependents?
Dependents are permitted to accompany the H-2B visa holder. Spouses and children under age 21 may enter the U.S. with the primary H-2B visa holder with an H-4 classification.
Although they may enter the U.S. with the primary H-2B visa holder, dependents are not permitted to work in the U.S. on H-4 status.
How Long Does the H-2B Visa Last?
Like H-2A visas, H-2B visas also have a maximum duration of three years. H-2B classification is eligible for extensions in one-year increments up to three years.
H-2B Visa Application and Filing Fees
The USCIS filing fees for the H-2B petition are as follows: $460 base fee and $120 fraud prevention fee. As of June 17, 2023, the application fee at a U.S. Embassy for H-2B visas is $205.
One notable difference between H-2A and H-2B visas is that only H-2B visas are eligible for premium processing. Petitioners seeking premium processing for an H-2B petition must pay a fee of $1,500 with their Form I-129 submission. Additional information about processing fees is available through the USCIS website.
Is There an H-2B Visa Cap?
Like the H-1B visa, there is also a cap for H-2B visas. The H-2B cap, set by Congress, is currently 66,000 per fiscal year.
USCIS divides the cap into 33,000 visas available during the year’s first and second half. The first annual cap starts on October 1 and runs through March 31. The second annual cap season starts on April 1 and extends through September 30.
Any unused H-2B petitions from the first cap will be available during the cap in the second half of the year. USCIS only accepts petitions from non-cap-subject petitioners if the H-2B cap is reached during the cap season.
Which H-2 Visa Is Right For Me?
The H-2 visa provides various options for employers who meet the program requirements to hire qualified workers to temporarily come to the U.S. Along with deciding if they need a temporary work visa for agricultural purposes (the H-2A visa) or other temporary work that requires an H-2B visa instead, petitioners will also want to know about the timelines for requesting an H visa and the cost of a visa. They’ll also want to know about other information, such as options for accompanying dependents.
With so many considerations to remember in seeking temporary labor, you want to make sure you’re making the right choice. Working with Envoy means you’ll have a legal team dedicated to helping you choose the proper H-2 visa and navigating the time-sensitive requirements of the various agencies: DOL, USCIS and U.S. Embassy. You’ll also get all the personal support and assistance you need for navigating and managing the H-2 visa application process.
Contact us today to learn more about your organization can incorporate the H-2A or H-2B visa.
Envoy is pleased to provide you this information, which was prepared in collaboration with Velia Rosas, who is Of Counsel at Global Immigration Associates (GIA), one of the two independent U.S. law firms Envoy exclusively works with on the Envoy Platform (the “U.S. Law Firms”).
Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at one of the two U.S. Law Firms working with the Envoy Platform or another qualified professional. On non-U.S. immigration issues, consult an Envoy global immigration service provider or another qualified representative.