The H‑2B Visa: Legal Framework and Practical Guide for Temporary Non‑Agricultural Workers in the U.S.

Legal Authority and Statutory Basis

The H‑2B visa program is governed by:

• 8 U.S.C. § 1101(a)(15)(H)(ii)(b) – Defines the H‑2B category.
• 8 CFR § 214.2(h) – Details special requirements for admission, maintenance of status, and extension of stay.
• 20 CFR Part 655, Subpart A – Regulates labor certification and employer obligations to the Department of Labor (DOL).

Under this framework, employers must first secure a Temporary Labor Certification (TLC) from the DOL, affirming that there are insufficient U.S. workers available, and that hiring H‑2B workers will not adversely impact wages or conditions.

Fiscal Year 2025 Cap and Supplemental Allocations

Standard Cap

• 66,000 H‑2B visas per fiscal year, divided equally:
  • 33,000 for October–March
  • 33,000 for April–September

These supplemental visas are allocated as follows

Allocation Period	Target Workers	Quantity
Oct 1–Mar 31 (First Half FY 2025)	Returning workers	20,716
Apr 1–May 14 (Early Second Half)	Returning workers	19,000
May 15–Sep 30 (Late Second Half)	Returning workers	5,000
Entire FY 2025 (Country-Specific Allocation)	Nationals of select countries (e.g., El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, Costa Rica)	20,000

Employers must demonstrate irreparable harm if unable to employ H‑2B workers to use these supplemental slots, and specific filing windows apply.

Key Compliance Requirements

A. Temporary Need Definition (8 CFR § 214.2(h)(6)(ii))

Employers must show their need is:

• Seasonal
• Peak‑load
• One‑time occurrence
• Intermittent

Or a combination thereof, aligning with regulatory interpretation

B. Filing Procedure

• Submit DOL-certified TLC and appropriate attestation forms (e.g., ETA‑9142B)
• File Form I‑129 with USCIS, within the proper window and at the correct service center (e.g., Texas Service Center for supplemental visas)

C. Limitations on Stay

• Initial stay: up to the TLC-authorized period
• Extensions: 1-year increments, up to a maximum of 3 years
• After 3 years, the worker must depart the U.S. and remain abroad for at least 60 days before seeking readmission.

D. Employer Obligations

Employers must adhere to wage and working condition standards and may face DOL audits to ensure compliance with the TLC terms.

• Hospitality sectors (e.g., hotels, food service)
• Landscaping and construction
• Seasonal manufacturing (e.g., seafood processing)
• Tourism and recreation (e.g., amusement parks)

Supplemental caps in FY 2025 reflect growing demand across these industries and legislative flexibility to meet your staffing needs.

What Employers and Workers Should Know

Employers:

• Start early: plan TLC and I‑129 filings around cap windows
• Accurately certify need and compliance
• Consider returning-worker and country-specific supplemental allocations

Workers:

• Understand program limits (max 3 years, then mandatory outside period)
• Know that these are employer-sponsored roles; no self‑petitioning
• No direct path to a green card under H‑2B; status is temporary

For Employers:

• Labor Market Testing and DOL filings
• Strategic planning for cap allocation utilization
• Compliance guidance (wages, housing, audits)

For Workers:

• Eligibility assessment
• Consular processing and interview preparation
• Rights and responsibilities education

We guide you through every step—from start to seasonal finish—with precision and compliance.

H-2B Visa FAQs

Q1: Can H-2B workers be transferred to another U.S. employer during the same season?
A: Yes, but the new employer must file a new Form I-129 with valid TLC; worker cannot start until petition is approved or H-2B portability applies (if eligible).

Q2: What is the “returning worker” exception and how does it help?
A: Workers who held H-2B status in the last 3 fiscal years may qualify under supplemental visa allocations, improving cap lottery odds.

Q3: Can an H-2B petition be filed for multiple workers in a single application?
A: Yes, if they are performing identical services under the same conditions and included in the TLC.

Q4: Is the employer liable for the worker’s return transportation costs?
A: Yes, if the worker is dismissed before the end of the contract (per 20 CFR § 655.20(j)(1)).

Q5: Can H-2B workers change status to H-1B or another visa?
A: Yes, if eligible and approved—but change of status must be requested via USCIS and supported by a qualifying employer.

Q6: Can H-2B workers be paid less than U.S. workers?
A: No. Employers must pay at least the prevailing wage set by DOL to both U.S. and H-2B workers (20 CFR § 655.10).

Q7: Can H-2B workers work multiple jobs?
A: No. They may only work for the petitioning employer unless another employer files a separate H-2B petition.

Q8: What happens if the start date of need changes after TLC approval?
A: Employers must file a new TLC if the delay is significant or the need period materially changes.

Q9: Can the visa be extended beyond three years with a break?
A: Yes. After staying abroad for at least 3 months, a new 3-year period can begin.

Q10: Can H-2B workers qualify for a green card through employer sponsorship?
A: Yes, through an employment-based immigrant petition (e.g., PERM/EB-3), but it’s not a direct path from H-2B and requires a separate legal process.