# H-2B Temporary Non-Agricultural Workers

**ALERT:** As of Jan. 9, 2024, USCIS has received enough petitions to reach the additional 20,716 H-2B visas made available for returning workers for the first half of FY 2024 with start dates on or before March 31, 2024, under the FY 2024 H-2B supplemental visa temporary final rule.

We will reject and return any cap-subject petitions received after Jan. 9, 2024, for H-2B returning workers with start dates on or before March 31, 2024, together with any accompanying fees. Read more: Cap Reached for Additional Returning Worker H-2B Visas for the First Half of FY 2024.

**ALERT:** The Department of Homeland Security through the U.S. Citizenship and Immigration Services, and the Department of Labor, published a temporary final rule making available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year 2024, on top of the statutory cap of 66,000 H-2B visas that are available each fiscal year. More information is available on the Temporary Increase in H-2B Nonimmigrant Visas for FY 2024 webpage.

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs. A U.S. employer, or U.S. employer, or U.S. agent as described in the regulations, must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf.

                      - To qualify for H-2B nonimmigrant classification, the petitioner must establish that:
                      - There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
                      - Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
                      - Its need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary. The employer’s need is considered temporary if it is a(n):                         - One-time occurrence –  A petitioner 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.
                          - 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;

**OR**
                      - **Seasonal need –**A petitioner claiming 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: You cannot claim a seasonal need if the time period when you do NOT need the service or labor is:*
                      - *Unpredictable;*
                      - *Subject to change; or*
                      - *Considered a vacation period for your permanent employees.*

**OR**
                      - Peak load need  – A petitioner claiming a peak load need must show that it:                         - Regularly employs permanent workers to perform the services or labor at the place of employment;
                        - Needs 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.

**OR**
                      - Intermittent need  – A petitioner claiming an intermittent need must show that it:                         - Has not employed permanent or full-time workers to perform the services or labor; and
                        - Occasionally or intermittently needs temporary workers to perform services or labor for short periods.

H-2B petitioners must also provide a single valid temporary labor certification from the U.S. Department of Labor (DOL), or, if the workers will be employed on Guam, from the Guam Department of Labor (Guam DOL).

There is a statutory numerical limit, or "cap," on the total number of noncitizens who may be issued an H-2B visa or otherwise granted H-2B status during a fiscal year. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year. However, unused H-2B numbers from one fiscal year do not carry over into the next.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.  For additional information on the current H-2B cap, and on workers who are exempt from it, see the Cap Count for H-2B Nonimmigrants Web page.

                      - **Step 1**: Petitioner submits temporary labor certification application to DOL.  Before requesting H-2B classification from USCIS, the petitioner must apply for and receive a temporary labor certification for H-2B workers with the U.S. Department of Labor (or Guam DOL if the employment will be in Guam).* For further information regarding the temporary labor certification application requirements and process, see the  Foreign Labor Certification, Department of Labor  and  Foreign Labor Certification, Guam Department of Labor  Web pages.
                      - **Step 2**: Petitioner submits Form I-129 to USCIS.  After receiving a temporary labor certification for H-2B employment from either DOL or Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS. With limited exceptions, the petitioner must submit the original temporary labor certification with Form I-129 (See the Form I-129 instructions for additional filing requirements). If the application for a temporary labor certification was processed in DOL’s FLAG system, the petitioner must include a printed copy of the electronic one-page “final determination” of the H-2B temporary labor certification approval with Form I-129. USCIS will consider a printed copy of the final determination as the original and approved temporary labor certification. If a petitioner has already submitted the original temporary labor certification with a previous Form I-129, submit a copy of the temporary labor certification and provide an explanation that includes the receipt number of the petition with which the original was filed, if available.
                      - **Step 3:** Prospective workers outside the United States apply for visa and/or admission.  After USCIS approved Form I-129, prospective H-2B workers who are outside the United States must:                         - Apply for an H-2B visa with the U.S. Department of State (DOS) at a U.S. Embassy or Consulate abroad and then seek admission to the United States with U.S. Customs and Border Protection (CBP) at a U.S. port of entry; or
                        - Directly seek admission to the United States in H-2B classification with CBP at a U.S. port of entry in cases where an H-2B visa is not required.

*Note: If you are petitioning for one or more Canadian musicians that will be employed within a 50 mile radius from the U.S.-Canadian border for 30 days or less, you may skip Step 1 in the H-2B process.

Anyone (including American workers and H-2B workers who suspect they or others may be the victim of H-2B fraud or abuse) can send us tips, alleged violations, and other relevant information about potential fraud or abuse using our online tip form.

Except as noted below, H-2B petitions may only be approved for nationals of countries that the secretary of homeland security has designated, with the concurrence of the secretary of state, as eligible to participate in the H-2B program.

The Department of Homeland Security publishes the list of H-2A and H-2B eligible countries in a Federal Register notice. Designation of eligible countries is valid for one year from publication.

Effective Nov. 9, 2023, nationals from the following countries are eligible to participate in the H-2B program:

*Regarding all references to “country” or “countries” in this document, it should be noted that the Taiwan Relations Act of 1979, Pub. L. No. 96-8, Section 4(b)(1), provides that “[w]henever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan.” 22 U.S.C. § 3303(b)(1). Accordingly, all references to “country” or “countries” in the regulations governing whether nationals of a country are eligible for H-2 program participation, 8 CFR 214.2(h)(5)(i)(F)(*1*)(*i*) and 8 CFR 214.2(h)(6)(i)(E)(*1*), are read to include Taiwan. This is consistent with the United States’ one-China policy, under which the United States has maintained unofficial relations with Taiwan since 1979.

A national from a country not on the list may only be the beneficiary of an approved H-2B petition if the secretary of homeland security determines that it is in the U.S. interest for the national to be the beneficiary of such a petition. See 8 CFR 214.2(h)(2)(iii) and 8 CFR 214.2(h)(6)(i)(E)(2) for additional evidentiary requirements.

The secretary of homeland security may consider adding a country to the Eligible Countries List upon receiving a recommendation from the U.S. Department of State or a written request from an unlisted foreign government, an employer that would like to hire nationals of an unlisted country in H-2A or H-2B status, or another interested party or parties. When designating countries to include on the list, the secretary of homeland security, with the concurrence of the secretary of state, will take into account factors including:
                      - The country’s cooperation with issuing travel documents for the citizens, subjects, nationals and residents of that country who are subject to a final order of removal
                      - The number of final and unexecuted (meaning completed but not yet carried out) orders of removal against citizens, subjects, nationals and residents of that country
                      - The number of orders of removal issued and executed against citizens, subjects, nationals and residents of that country
                      - Other factors that may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)( 1 )( i ) and 8 CFR 214.2(h)(6)(i)(E)( 1 ).

If you want DHS to consider adding a country to the Eligible Countries List, send a written request to DHS’s Office of Policy or the Department of State at a U.S. Embassy or Consulate. Country listings are valid for one year. DHS may add a country to the Eligible Countries List at any time if the secretary of homeland security determines that the country is eligible.

**Note:**If you request H-2B workers from both eligible and non-eligible countries, USCIS suggests that you file two separate petitions. Filing one petition for workers from eligible countries and a separate petition for workers from non-eligible countries may help decrease delays in processing your request for H-2B workers.

Generally, USCIS may grant H-2B classification for up to the period of time authorized on the temporary labor certification. H-2B classification may be extended for qualifying employment in increments of up to 1 year each. A new, valid temporary labor certification covering the requested time must accompany each extension request. The maximum period of stay in H-2B classification is 3 years.

A person who has held H-2B nonimmigrant status for a total of 3 years must depart and remain outside the United States for an uninterrupted period of 3 months before seeking readmission as an H-2B nonimmigrant. Additionally, previous time spent in other H or L classifications counts toward total H-2B time.

**Exception**: Certain periods of time spent outside of the United States may "interrupt" an H-2B worker's authorized stay and not count toward the 3-year limit. See the Calculating Interrupted Stay for H-2 Classifications Web page for additional information.

Any H-2B worker's spouse and unmarried children under 21 years of age may seek admission in H-4 nonimmigrant classification. Family members are not eligible for employment in the United States while in H-4 status.

OMB Control Number 1615-0107

Petitioners of H-2B workers must notify USCIS within 2 workdays if any of the following occur:
                      - No show : The H-2B worker fails to report to work within 5 work days of the latter of:                         - The employment start date on the H-2B petition; or
                        - The start date established by the employer;
                      - Abscondment:  The H-2B worker leaves without notice and fails to report for work for a period of 5 consecutive workdays without the consent of the employer;
                      - Termination:  The H-2B worker is terminated before completing the H-2B labor or services for which he or she was hired; or
                      - Early Completion:  The H-2B worker finishes the labor or services for which he or she was hired more than 30 days earlier than the date specified in the H-2B petition.

Petitioners must include the following information in the employment-related notification:
                      - The reason for the notification (for example, explain that the worker was either a “no show,” “absconder,” “termination,” or “early completion");
                      - The reason for untimely notification and evidence for good cause, if applicable;
                      - The USCIS receipt number of the approved H-2B petition;
                      - The petitioner’s information, including:                         - Name
                        - Address
                        - Phone number
                        - Employer identification number (EIN)
                      - The employer’s information (if different from that of the petitioner):                         - Name
                        - Address
                        - Phone number
                      - The H-2B worker’s information:                         - Full Name
                        - Date of birth
                        - Place of birth
                        - Last known physical address and phone number

Additionally, to help USCIS identify the H-2B worker, submit the following for each H-2B worker, if available:
                      - Social Security number, and
                      - Visa number

**Note**: USCIS defers to DOL’s definition of “workday.” According to the Fair Labor Standards Act (FLSA), this generally means the period of time on any particular day when an employee begins and ends his or her “principal activities.”

**How do I notify USCIS?**

Email or mail your notification to the USCIS Service Center that approved the I-129 petition. Although not required, email notification is strongly recommended to ensure timely notification.

California Service Center

By email: CSC-X.H-2BAbs@uscis.dhs.gov

By mail:

**California Service Center**Attn: BCU SectionP.O. Box 30050Laguna Niguel, CA 92607–3004

**Vermont Service Center**

By email: VSC.H2BABS@uscis.dhs.gov

By mail:

Vermont Service CenterAttn: BCU ACD38 River RoadEssex Junction, VT 05479-0001

OMB Control Number 1615-0107

A petitioner, agent, facilitator, recruiter, or similar employment service is prohibited from collecting a job placement fee or other compensation (either direct or indirect) at any time from a noncitizen H-2B worker as a condition of employment.

Petitioners may avoid denial or revocation of their H-2B petitions if they notify USCIS that they obtained information concerning the beneficiary’s payment of (or agreement to pay) a prohibited fee or compensation to any agent, facilitator, recruiter, or similar employment service only after they filed their H-2B petition. This narrow exception does not apply, however, where a petitioner knew or should have known at the time of the filing of its H-2B petition that the prospective worker had paid (or agreed to pay) such recruitment-related fees to any such persons or entities.

Petitioners must notify USCIS of an H-2A worker’s payment or agreement to pay prohibited fees to a recruiter, facilitator, or similar employment service within 2 workdays of gaining knowledge of such payment or agreement.

Petitioners must include the following information in the fee-related notification:
                      - The reason for the notification;
                      - The USCIS receipt number of the approved H-2B petition;
                      - The petitioner’s information                         - Name:
                        - Address
                        - Phone number
                      - The employer’s information (if different from that of the petitioner):                         - Name
                        - Address
                        - Phone number
                      - Information about the recruiter, facilitator, or placement service to which the beneficiaries paid or agreed to pay the prohibited fees:                         - Name
                        - Address

**How do I notify USCIS?**

Email or mail your notification to the USCIS Service Center that approved the I-129 petition. Although not required, email notification is strongly recommended to ensure timely notification.

**California Service Center**

By email: CSC.H2BFee@uscis.dhs.gov

By mail:

California Service CenterAttn: H-2B FeeP.O. Box 10695Laguna Niguel, CA 92607–1095

**Vermont Service Center**

By email: VSC.H2BPROPLACEMENT@uscis.dhs.gov

By mail:

Vermont Service CenterAttn: BCU ACD38 River RoadEssex Junction, VT 05479-0001

The National Defense Authorization Act for Fiscal Year 2018 (FY 2018 NDAA) created an exemption for certain H-2B petitioners on Guam and in the Commonwealth of the Northern Mariana Islands (CNMI) from the requirement to show that the need for a worker is temporary.  This exemption has been extended and amended by subsequent NDAAs. Volume 2, Part I, Chapter 11 of the USCIS Policy Manual provides additional information and guidance on qualifying for the exemption.

                      - Paperwork Reduction Act: H-2 Petitioner's Employment Related or Fee Related Notification
                      - Guidance on “Temporary Need” in H-2B Petitions
                      - Cap Count for H-2B Nonimmigrants
                      - H-2B Petitioners Must Include Temporary Labor Certification Final Determination with Form I-129
                      - Calculating Interrupted Stays for the H-2 Classifications
                      - Reminder: Certain Fees May Not Be Collected From H-2A and H-2B Workers

01/12/2024

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