H-2B Work Visa Eligibility & Legal Issues

Learn about the eligibility rules and legal considerations before applying for an H-2B work visa.

If you are a foreign national seeking to work in the U.S., there are multiple work visas potentially available to you -– among them, the H-2B visa for skilled or unskilled foreign workers in temporary or seasonal nonagricultural occupations. In this article, we focus on the privileges, limitations, and complications that come with qualifying for an H-2B visa.  

What Types of Workers Typically Succeed With an H-2B Application?

H-2B classification is available for a foreign worker coming to the U.S. temporarily to perform temporary services/labor for a U.S. employer. The temporary services/labor may  not  be agricultural services. As broad as that definition might sound, the realities of who receives this visa are far narrower.

Realize at the outset that certain workers, even if they intend to work only temporarily, cannot qualify for H-2B visas because of the category of industry in which they work. For example, foreign medical graduates may not perform professional medical services pursuant to H-2B status, nor may agricultural workers perform labor in H-2B status.

Although the regulations governing H-2B visas do not otherwise limit the types of work H-2B nonimmigrants may engage in, in practice H-2B visas are typically issued to seasonal hotel workers, ski resort workers, summer camp employees, construction workers, and others who are needed to fulfill “seasonal,” “peak-load,” or “intermittent” labor needs.

The reason for this small sample of workers is largely due to the H-2B’s “double temporariness” requirement: Not only must the employment be temporary, but the actual  need  for the employment must also be temporary. It is difficult to demonstrate the temporariness need for the majority of workers, such as restaurant workers, IT personnel, accountants, and so forth, since the U.S. constantly requires these workers.   Conversely, it's easier to show that the need for employees such as ski instructors is only temporary –- during the winter, or ski season.  

Also realize that only nationals from certain countries may be admitted to the U.S. in H-2B status. Before beginning the application process, ensure that you are a national of one of the following countries: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.

H-2B Status - Privileges and Limitations

Here are some key features of the H-2B visa.

  1. Dependents: Your spouse and unmarried children under the age of 21 may accompany you as your H-4 dependents. However, H-4 visa holders may  not  engage in employment (but they may attend schools).
  2. Limited Period of Stay: Similar to the H-1B maximum-stay limit, a foreign national who has held H-2B status for a total of three (3) years must leave and remain outside the U.S. for an uninterrupted period of three (3) months before seeking readmission as an H-2B nonimmigrant. Importantly, unlike H-1B status, any time spent outside of the U.S. while holding H-2B status counts towards the maximum-stay limitation.
  3. Possibilities for future immigration: Although it is possible to change status from H-2B to another nonimmigrant status, doing so may raise concerns with U.S. Citizenship and Immigration Services (USCIS) regarding the legitimacy of the H-2B petition. USCIS may question whether the applicant really has the required intent to remain in the U.S. temporarily. USCIS might, as a result, deny the request to change status, or even revoke the previously approved H-2B petition.

Common Complications Within the H-2B Visa Application Process

The following are a few of the most common complications for foreign workers seeking H-2B status.

  1. Annual H-2B Cap: Congress allots only 66,000 H-2B visas per year. If the 66,000 cap is reached, you may not apply for H-2B status until the next fiscal year, when the cap resets.
  2. Required Labor Certification: To qualify for H-2 status, your prospective employer must conduct a labor certification process to confirm the unavailability of U.S. workers to fill your position (similar to the labor certification necessary for immigrant petitions). This process is complicated and costly and may deter your employer from pursuing this nonimmigrant status on your behalf.

Information on Applying for an H-2B Visa

If you decide to apply for an H-2B visa, see H-2B Work Visa Requirements, Fees, and Application Process.

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