The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the prevailing wage, applicable Federal minimum wage, the State minimum wage, or local minimum wage to the H-2B non-immigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.
Eligibility for H-2B:
To qualify for H-2B non-immigrant 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;
- The prospective employees are nationals of an H-2B eligible country (see the H-2B Temporary Non-agricultural Workers page for the list;
- Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers; and
- Its need for the prospective worker’s services or labor is temporary, regardless of whether the 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 not hired 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 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.
- 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 is 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:
- may change; or
- Considered a vacation period for your permanent employees.
- 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, that it needs to temporarily increase staffing due to a seasonal or short-term demand, and that the temporary additions to staff will not become part of the employer’s regular operation.
- 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 that it 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). H-2B workers may stay in the United States for up to three years.