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Overview. The H-2B classification lets a United States employer fill a temporary nonagricultural job with a foreign worker when qualified United States workers are not available and the employment will not adversely affect the wages and working conditions of similarly employed United States workers. The category is created by INA 101(a)(15)(H)(ii)(b), 8 U.S.C. 1101(a)(15)(H)(ii)(b), and is implemented by the Department of Homeland Security at 8 CFR 214.2(h)(6) and by the Department of Labor at 20 CFR part 655, subpart A.
The need must be the employer's, not the job's. Employment is temporary when the employer needs a worker for a limited period and that need will end in the near, definable future, whether or not the underlying position could itself be described as permanent. 8 CFR 214.2(h)(6)(ii)(A) and (B). The regulation recognizes four bases for such a need:
How long the need may last. Under the DHS regulation the period of need will generally be limited to one year or less, although a one-time event can support a need lasting up to three years. 8 CFR 214.2(h)(6)(ii)(B). The Department of Labor applies a shorter measure: except where the need is a one-time occurrence, the certifying officer will deny a request where the employer's need lasts more than nine months. 20 CFR 655.6(b). The two limits answer different questions, and an employer must satisfy both.
Temporary labor certification. The employer must apply for a temporary labor certification from the Secretary of Labor before filing the petition, except that for employment in Guam the application goes to the Governor of Guam. 8 CFR 214.2(h)(6)(iii)(A) and (v). The labor process runs through a prevailing wage determination, placement of a job order with the State workforce agency, employer-conducted recruitment of United States workers, and a recruitment report, after which a certifying officer decides the Application for Temporary Employment Certification. 20 CFR 655.10, 655.16, 655.40 through 655.48, 655.50 and 655.51.
What the certification settles and what it does not. The certification is advice to the adjudicator on whether United States workers capable of performing the temporary services or labor are available and whether the employment would adversely affect similarly employed United States workers. 8 CFR 214.2(h)(6)(iii)(A). It carries evidentiary weight but confers no entitlement to the classification, which USCIS grants or denies on the petition. The certification is also narrow in scope: it is valid only for the number of positions, the area of intended employment, the job classification and specific labor to be performed, and the employer named in it, and it may not be transferred from one employer to another unless the second employer is a successor in interest. 20 CFR 655.55.
The annual limit. The number of workers who may be issued an H-2B visa or otherwise granted H-2B status in a fiscal year is capped at 66,000. INA 214(g)(1)(B), 8 U.S.C. 1184(g)(1)(B). No more than 33,000 of that total may be used in the first six months of the fiscal year. 8 U.S.C. 1184(g)(10). The limit reaches principal workers only, so accompanying spouses and children are not counted against it. 8 U.S.C. 1184(g)(2). Once the cap for a fiscal year is reached, only petitions for workers exempt from it may be accepted.
Numbers above the statutory ceiling. A returning-worker exemption written into the statute at 8 U.S.C. 1184(g)(9) reached only workers who had already been counted in fiscal year 2013, 2014 or 2015 and operated only in fiscal year 2016, so it is spent. Congress has since acted through annual appropriations legislation, authorizing the Secretary of Homeland Security to release additional H-2B numbers for a single fiscal year, which DHS implements by temporary rule codified at 8 CFR 214.2(h)(6) and ordinarily restricts to returning workers. Whether such an allocation exists in a given fiscal year, how large it is, and which employers and workers may draw on it turn on that year's legislation and rule, so the number of visas actually available is not fixed by the statutory cap alone.
Status and travel document are distinct. Approval of the petition establishes eligibility for H-2B classification; the visa is only the travel document that permits an applicant to present at a port of entry, and admission is a separate decision made by a Customs and Border Protection officer. A visa may remain physically valid after the underlying classification has ended, and the expiration of a visa does not by itself terminate status already granted in the United States.
Period of stay. H-2B classification is granted for the period authorized by the temporary labor certification and may be extended for the validity of a certification or for up to one year at a time, with a new and valid certification required for each extension. 8 CFR 214.2(h)(15)(ii)(C). Total time in H-2B is limited to three years. A worker who has held H-2A or H-2B status for a total of three years may not be granted H-2B status again until remaining outside the United States for an uninterrupted period of at least sixty days. 8 CFR 214.2(h)(6)(vii)(B).
Family members. The spouse and children of an H-2B worker, if accompanying or following to join, may be admitted in H-4 classification for the same period of admission or extension as the principal, and H-4 status does not confer eligibility for employment authorization incident to status. 8 CFR 214.2(h)(9)(iv).
Fees may not be shifted to the worker. As a condition of approval, no job placement fee, no fee or penalty for breach of contract, and no other compensation related to the employment, direct or indirect, may be collected at any time from the worker or from anyone acting on the worker's behalf, whether by the employer or by an agent, attorney, facilitator, recruiter or similar employment service. Passing along a cost that the statute or the regulations make the employer's responsibility counts as a prohibited fee. 8 CFR 214.2(h)(6)(i)(B).
Related pages. The other temporary work categories in this part of the handbook are H-1B Visa Temporary Professionals, E-3 Special "Australian H-1B", H-1B1 Visa for Citizens of Singapore, H-1B1: Special Chilean H-1B, L Visas: Intracompany Transferees, E Visas: Treaty Traders and Investors, O-1 Extraordinary Ability Workers and TN Professionals: Canada and Mexico, all of which sit under Common Work Visas. Questions about a particular temporary need may be raised through the contact page.