Alert Note: As of early June, 2021, USCIS has received enough petitions to reach the cap for the additional 16,000 H-2B visas made available for returning workers under the May 21, 2021 announcement of a H-2B supplemental cap temporary final rule. DHS first announced the planned supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program on April 20, 2021. The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.
Petitions can still be accepted for H-2B nonimmigrant workers for the additional 6,000 visas allotted for nationals of Honduras, Guatemala and El Salvador (collectively called the Northern Triangle).
H2Bs are non-agricultural temporary or seasonal workers.
Far from reducing job availability for U.S. workers, the H-2B program is essential to many smaller and seasonal businesses. It supplies a source of supplementary labor for demanding jobs that U.S. workers are unwilling to take. H-2B workers provide a legal, stable and motivated work force, which allows businesses to grow and create more jobs for Americans as well. Employers report that although recruiting and hiring costs are higher than for U.S. workers, these costs are offset by gains in productivity. H-2B employees are consistently reliable and hard-working. They cure the problem of not having available, interested, and dependable U.S. workers. . H-2B employment also correlates with higher U.S. employment rates. Without the program, many employers would go unstaffed, close their doors, ad cause lost income for American businesses, and lost tax revenues.
The category is limited to citizens or nationals of designated countries.
Employers of H-2B workers continuing employment with the same employer should continue to follow current Form I-9 guidance provided in the Handbook for Employers - Section 6.7
Employees who want to change to a new employer benefit from having "portability" of their nonimmigrant visa status. Without portability, H-2B workers are required to leave the States at the end of their authorized period of stay, so if the secondary petition has not yet been granted, the worker must travel home before turning around and returning to the States for the second job. Portability alleviates this unnecessarily duplicative process.
Portability allows an H-2B worker to transfer his or her employment from one authorized employer to another without an intermediate petition process.
On May 25, the Department of Homeland Security and the Department of Labor published a joint temporary rule (86 FR 28198) to:
Under this temporary rule, the worker can begin after a proper filing by the new employer. The worker can begin after the H-2B petition along with a valid temporary labor certification is received, even though it has not yet been approved.
Portability applies if:
Portability allows cost-spreading with shared recruitment, visa, and transportation expenses for shared workforces. For example, a ski resort hires H-2B employees as dishwashers for its winter season, from late November to April.
A crab processor hires H-2B crab pickers from April through December. The ski resort can send its H-2B workers to the crab processor at the end of the ski season for the start of crab-processing season, as long as both companies proved a seasonal need for temporary workers and were approved by USCIS. Both share the costs of the visa petition and travel expenses and provide workers with a longer term of employment.
The H-2B employee’s unexpired Form I-94, Arrival/Departure Record, indicating his or her H-2B status, along with the employee’s foreign passport, qualify as a Form I-9 List A document.
To complete Section 2, the new employer should enter under List A: