Checklist: Obtaining H2-B (temporary non-agricultural worker) visas (USA)

Introduction

This checklist will help in-house counsel, private practice lawyers, and human resource departments to understand and comply with the requirements for obtaining H-2B (temporary non-agricultural worker) visas.

The checklist addresses the following steps:

1. Understanding H-2B visa essentials
2. Meeting the requirements for obtaining H-2B visas
3. Following the procedure for obtaining H-2B visas
4. Complying with notification requirements for H-2B visa petitioners

This checklist can be used in conjunction with How-to guides: Overview of US employment law and How to prepare for a US Immigration and Customs Enforcement I-9 audit, and Checklist: Obtaining EB-1 visas for priority workers and persons of extraordinary ability.

Step 1 – Understand H-2B visa essentials

Step 2 – Meet the requirements for obtaining H-2B visas

Step 3 – Follow the procedure for obtaining H-2B visas

Step 4 – Comply with the notification requirements for H-2B visa employers (petitioners)

General notes

The H-2B visa program is designed to allow foreign nationals to work in temporary non-agricultural jobs due to an intermittent need, a one-time occurrence, or a peak load need. The program is administered by the Department of Homeland Security’s (DHS) US Citizenship and Immigration Services (USCIS), and the Department of Labor’s (DOL) Employment and Training Administration (ETA).

Note that the new presidential administration in the US has made immigration policy an important part of its agenda. Changes to existing policy may happen rapidly, so information should be verified by Immigration and Customs Enforcement (ICE) before taking action.

Legal framework

The enabling legislation for the H-2B visa program is provided in 8 USC section 1184 with regulations (see 20 CFR Part 655) as well as rules issued by the DOL and the USCIS.

Key considerations

Employers seeking approval for eligibility for H-2B visas must ensure that they meet all of the statutory requirements and comply with the established process.

Step 1 – Understand H-2B visa essentials

1.1 Understand the purpose of H-2B visas

The H-2B program allows a limited number of foreign workers to come to the US to take up temporary, non-agricultural work. Employers apply for a temporary labor certification (TLC), and the procedures for doing so reflect a determination by the Secretary of Homeland Security that:

• there are insufficient US workers who are qualified and who will be available to perform the temporary services or labor for which an employer wants to hire foreign workers; and
• the employment of the H-2B worker will not adversely affect the wages and working conditions of US workers similarly employed. See 20 CFR section 655.1(a).

1.2 Understand the annual cap imposed on number of H-2B visas

Under the Immigration and Nationality Act (INA) section 214(g)(1)(B), as amended, there is a statutory numerical limit, or ‘cap,’ of 66,000 on the total number of noncitizens who may receive an H-2B visa or be granted H-2B status. This limitation is based on the fiscal year beginning October 1 and ending September 30. Unused H-2B numbers from one fiscal year do not carry over into the next fiscal year.

In addition to this annual limitation, the DHS and the DOL, on December 2, 2024, jointly published an Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2025 increasing the numerical limit (or cap) on H-2B non-immigrant visas by up to 64,716 additional visas for all of (FY) 2025. On September 18, 2024, the cap for the first half of fiscal year 2025 was reached. Lawmakers are working on increasing the amount. As of August 11, 2025, 10,996 of the 33,000 of the first half of the fiscal year of 2026 has been approved.

The USCIS allocates certain numbers of visas throughout the year based on specific criteria, regardless of nationality, and has a separate allocation of visas that are set aside for nationals of El Salvador, Guatemala, Honduras, and Haiti.

1.3 Understand the countries of which visa beneficiaries can be citizens

Until recently, the DHS’s Secretary designated, with the concurrence of the Office of the Secretary of State, countries that were eligible to participate in the H-2B program. The DHS publishes an updated list of eligible countries annually. The designations were valid for one year from publication. Effective January 17, 2025, USCIS will no longer require H-2B beneficiaries to be nationals of designated eligible countries.

1.4 Understand the period of stay permitted under H-2B visas

Generally, USCIS grants an H-2B classification for the time period authorized on the TLC (see 3.1 below). This initial H-2B classification time may then be extended for qualifying employment in increments of up to one year. A new, valid TLC covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is three years.

At the expiration of the authorized time period, the person who has held H-2B non-immigrant status must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission as an H-2B non-immigrant. Previous time spent in other H classifications or L classifications (for individuals employed abroad by a US entity who are transferred to the United States) counts toward total H-2B time.

Individuals accumulating 3 years of H-2B nonimmigrant status are required to depart the US and remain outside the country for an uninterrupted period of at least 60 days before they can seek re-admission under the H-2B visa. Notably, time spent in other H or L visa classifications is also counted toward the total H-2B stay.

The 3-year maximum H-2B stay can be reset through an uninterrupted absence from the US for a minimum of 60 days. Brief trips to the US for business or leisure during this period do not interrupt the required absence, but they do not contribute to the 60-day count.

Petitioners are required to provide evidence documenting the worker’s qualifying 60-day absence from the US. Acceptable evidence includes, but is not limited to, arrival and departure records, copies of tax returns, and records of employment outside the US.

1.5 Understand the H-2B visa’s wage requirements

An H-2B worker must be paid no less than the wage specified in the job order that was approved by the DOL during the initial prevailing wage determination. That wage must be at least:

• the prevailing wage rate obtained from the Employment and Training Administration (ETA); or
• the applicable federal, state, or local minimum wage when these minimum wages are higher than the prevailing wage rate.

Other federal wage statutes, such as the overtime provisions of the Fair Labor Standards Act, apply to H-2B workers in the same manner as they apply to other US workers. An additional requirement is that the wage paid to the H-2B employee must be equal to workers in corresponding employment for the same employer, as described in Fact Sheet #78A: Corresponding employment under the H-2B Program.

1.5.1 Obtaining the prevailing wage rate

To obtain the prevailing wage rate, the H-2B employer must request it by submitting a completed ETA Form 9142, Application for Prevailing Wage Determination to the National Prevailing Wage Center (NPWC). See further information on the ETA’s website. The NPWC will return the form, indicating the prevailing wage, the source, and the validity period.

1.6 Understand the H-2B visa’s job-hour requirements

The H-2B job must be a full-time temporary position, providing at least 35 hours of work per workweek throughout the length of the time period specified on the application and job order (see 3.1.2 below). A workweek must be a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. While the workweek does not have to be a calendar week, it must begin on a fixed and regular day and can begin at any hour of the day.

Further, all H-2B employers must meet a three-quarters guarantee, meaning that the employer guarantees the worker employment for a total number of work hours equal to at least three-quarters of the workdays in each 12-week period (or 6-week period for job orders lasting less than 120 days). The measurement period for this requirement begins with the first workday after the arrival of the worker at the place of employment or the advertised first date of need (whichever is later), and the measurement period ends on the end date indicated in the job order (or its extensions, if any). Further information is available in Fact Sheet #78E: Job Hours and the Three-Fourths Guarantee under the H-2B Program, provided by the DOL.

1.7 Understand the prohibition on receiving compensation from an H-2B worker

The H-2B employer – as well as its attorneys, agents, or employees – is prohibited from seeking or receiving payment of any kind from a H-2B worker related to any activity connected to obtaining employment certification. This includes, but is not limited to, payment of the employer’s attorney or agent fees, application or DHS petition fees, or recruitment costs. The term payment includes, for example, monetary payments, wage concessions (including deductions from wages, salary, or benefits), kickbacks, bribes, tributes, in kind payments, and free labor. See Fact Sheet #78: General Requirements for Employers Participating in the H-2B Program for more information on prohibitions on compensation related to employment.

1.7.1 Recruitment

Employers must contractually forbid in writing any agent or recruiter (or any employee of such agent or recruiter) engaged either directly or indirectly by the employer in the international recruitment of H-2B workers from seeking or receiving payments or other compensation from prospective workers. As evidence that no such payment is a part of the recruitment process, the employer and their attorney or agent must provide the DOL with:

• a copy of all agreements with any agent or recruiter whom it engages or plans to engage in the international recruitment of H-2B workers; and
• the identity and location of all persons or entities hired by or working for the agent or recruiter, and any of their agents or employees, to recruit prospective foreign workers for the H-2B job opportunities offered by the employer.

1.7.2 Costs of obtaining visa

In the first workweek the employer must either pay or reimburse the H-2B worker for any visa, visa processing, and other related fees incurred by the worker. An employer need not pay passport or other charges primarily for the benefit of the worker.

1.7.3 Modernizing the H-2 temporary visa programs

On December 18, 2024, the DHS issued a final rule designed to modernize and improve H-2 programs. Under the new regulations:

• Employers who violate H-2B program requirements, including employers who fail to demonstrate an ability and intent to follow the program requirements, may be ineligible for the limited number of available visas.
• Prohibitions on employer-imposed fees are clarified. It also strengthens the prohibition on, and consequences of, such prohibited fees being collected by employers or recruiters at any time from H-2 workers, protecting workers from incurring exploitive debts and preventing abuse.
• Greater flexibility is granted to H-2 workers by extending grace periods for seeking new employment, preparing for departure from the United States, or seeking a change of immigration status, which will provide increased clarity and worker flexibility, mobility, and protections.

The new rule went into effect on January 17, 2025.

Step 2 – Meet the requirements for obtaining H-2B visas

2.1 Show that the employer’s need for the prospective worker’s services or labor is temporary

In order to obtain an H-2B visa for an employee, the employer must be able to show that the need for the prospective worker’s services or labor is temporary. The employer’s need will be regarded as temporary if it is:

• a one-time occurrence;
• related to a seasonal need;
• a peak load need; or
• an intermittent need.

2.1.1 One-time occurrence

An employer petitioning for H-2B status and claiming a one-time occurrence must show that it:

• has an employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker; and
• has not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future (that is, the employer is intending to hire H-2B workers only in this current period of essential need).

2.1.2 Seasonal need

An employer that is basing their claim on a seasonal need must show that the service or labor for which it seeks workers is:

• traditionally tied to a season of the year by an event or pattern; and
• of a recurring nature.

Note that an employer may not claim a seasonal need if the time period when they do not need the service or labor is any of the following:

• unpredictable;
• subject to change; or
• considered a vacation period for permanent employees.

2.1.3 Peak load need

An employer that is claiming a peak load need must show three things:

• it regularly employs permanent workers to perform the services or labor at the place of employment;
• there is a need to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
• the temporary additions to staff will not become part of the employer’s regular operation.

2.1.4 Intermittent need

An employer claiming an intermittent need must demonstrate that:

• it has not employed permanent or full-time workers to perform the services or labor; and
• there are occasional or intermittent needs for temporary workers to perform services or labor for short periods.

For further information about the types of Temporary Need, see USCIS: Guidance on “Temporary Need” in H-2B Petitions.

2.2 Establish that not enough US workers are able, willing, qualified, and available to do the temporary work

The employer must establish that there are no unemployed US workers willing or able to do the work. This is established through the Chicago National Processing Center using the TLC process (see 3.1 below). This process requires a recruitment campaign, including advertising in a local newspaper for available temporary workers.

2.3 Establish that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed US workers

To establish that employing workers on an H-2B visa will not negatively affect the pay or conditions of US workers, a prevailing wage request will need to be completed via the Foreign Labor Application Gateway (FLAG system).

Step 3 – Follow the procedure for obtaining H-2B visas

3.1 Obtain temporary labor certification from Department of Labor

Before requesting H-2B classification from USCIS, the employer must apply for and receive a TLC for H-2B workers from the DOL (or from the Guam DOL, if the employment will be in Guam).

3.1.1 Requirements

The criteria for a valid TLC demonstrate that employing foreign nationals will not adversely affect the working conditions and wages of similarly employed US nationals.

3.1.2 Process

The process for obtaining the TLC from the DOL involves the following three steps:

• Register utilizing the FLAG system – this must be done 150-120 calendar days before the date of need.
• Obtain a prevailing wage determination (PWD) – employers must obtain this at least 60 calendar days before it is needed. The PWD is obtained from the National Prevailing Wage Center (NPWC) using the Application for Prevailing Wage Determination (Form ETA-9141). The PWD application is available for electronic filing on the FLAG system and filing by mail.
• File a job order and H-2B application – this must be filed 90 to 75 days prior to the date of need, with the State Workforce Agency (SWA). Employers must also submit the H-2B application (Form ETA-9142B and Appendices) with supporting documents and a copy of the job order filed with the SWA to the Chicago National Processing Center (Chicago NPC). Further information about the content of a job order is provided in the DOL’s Job Order Checklist.

3.2 Submit Form I-129 to US Citizenship and Immigration Services (USCIS)

After complying with the steps set out at 3.1 above and then receiving the TLC from DOL, the employer (petitioner) submits the Form I-129 to a USCIS service center. Generally, the employer (petitioner) attaches an original copy of their TLC with Form I-129 but if the application for the TLC was processed by DOL’s FLAG online system, the petitioner instead includes a printed copy of the final determination together with Form I-129. USCIS will consider the printed copy the original and approved TLC. The USCIS website has a service center directory.

3.3 Prospective worker applies for visa/admission

After the approval of Form I-129 by USCIS, prospective H-2B visa holders outside the United States must either:

• apply for an H-2B visa with the US Department of State at a consulate or embassy abroad and then seek admission to the country at a US Customs and Border Protection (CBP) port of entry; or
• seek direct admission into the United States with CBP at a port of entry if H-2B visa classification is not required (for example, H-2A applicants who have previously been issued at least one H-2A or H-2B visa in the last 48 months).

Step 4 – Comply with notification requirements for H-2B visa employers (petitioners)

4.1 Determine whether notice to USCIS is required

By filing an H-2B petition, the employer agrees to notify the DHS within two working days if an H-2B worker:

• fails to report to work within five working days after the employment start date stated on the petition;
• completes the labor or services more than 30 days earlier than the employment end date stated on the petition;
• absconds from the worksite by not reporting for work for a period of five consecutive working days without the consent of the employer; or
• is terminated prior to the completion of the services or labor.

The employer must also retain evidence of such notification and make it available for inspection by DHS officers for a one-year period beginning on the date of the notification. Any failure to comply with these notice or retention provisions may result in penalties.

4.2 If notice is required, comply with notice content and format requirements

4.2.1 Content of notice

When employers are required to submit notice to USCIS for any of the above reasons, they must include the following information in the employment-related notification:

• The reason for the notification (eg, explain that the worker was either a ‘no show,’ ‘absconder,’ ‘termination,’ or ‘early completion’).
• If the employer fails to submit the information within two days, as required, the reason for the untimely notification and evidence for good cause.
• The USCIS receipt number of the approved H-2B petition.
• The petitioner’s information, including:
  • name;
  • address;
  • phone number; and
  • employer identification number (EIN).
• The employer’s information (if different from that of the petitioner):
  • name;
  • address; and
  • phone number.
• The H-2B worker’s information:
  • full name;
  • date of birth;
  • place of birth; and
  • last known physical address and phone number.

In addition, the employer must submit the following for each H-2B worker, if available:

• Social Security number; and
• visa number.

4.2.2 Format of notice

The notification should be sent via email or mail to the USCIS Service Center that approved the I-129 petition. The USCIS recommends email notification to ensure timely notification.

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