Immigration Solutions to Advance Strong Cases

The H-2B visa requires that the intended position is temporary or seasonal in nature and there is a shortage of U.S. workers.  USCIS determines whether there is a shortage of workers through a labor certification process which must confirm that there are no qualified U.S. workers eligible for the employment. In order to qualify for the H-2B category, the employer must have a temporary need to bring the worker to the U.S.  The need must be either a one-time occurrence, seasonal, peak load or intermittent need.  The length of the need is generally one year or less and the type of nature of the need are defined below:

  • One-time occurrence - Petitioner has not employed workers to perform the services or labor in the past and it will not need workers to perform the services or labor in the future.  Or, it is an employment situation that is otherwise permanent but a temporary event of short duration has created the need for a temporary worker.
  • Seasonal need – The services or labor are traditionally tied to a season of the year and are recurring and predictable.
  • Peak load need – Petitioner regularly employs permanent workers to perform the services or labor and it needs to supplement its permanent staff on a temporary basis to handle short-term or seasonal demand.
  • Intermittent need- Petitioner has not employed permanent or full-time workers to perform the services or labor but occasionally or intermittently needs temporary workers to perform services or labor for short periods.

There is a limit or cap on the total number of foreign nationals who may be issued a H-2B visa or otherwise be granted H-2B status during a fiscal year.  Congress has set the cap at 66,000 with 33,000 for workers who begin employment on October 1 (1st half of fiscal year October 1 – March 31).  The remaining 33,000 is for workers beginning employment on April 1 (2nd half of fiscal year April 1 – September 30).  The current cap count is available at H-2B Cap Count.

There are some workers who are exempt from the count including fish roe processors, fish roe technicians, supervisors of fish roe processing, workers performing services in Guam or Northern Mariana Islands and “returning workers” (2016 only).

Disclaimer: The information contained on this webpage is provided for general information only and should not be construed as legal advice or the formation of an attorney/client relationship.