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US Seasonal Employers and the H-2B Visa

6.75 minute read
"US employers heavily rely on the H-2B Visa program to hire temporary foreign workers to fill temporary and non-professional positions. The H-2B Visa program is tough since employers are required to conduct a labor market test to obtain a temporary foreign labor certification."
Written by My Visa Source Team
Published on:  Oct 20, 2021
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US employers heavily rely on the H-2B Visa program to hire temporary foreign workers to fill temporary and non-professional positions. The H-2B Visa program is tough since employers are required to conduct a labor market test to obtain a temporary foreign labor certification. However, over the years it has become essential for US employers as a way of meeting the growing demand for temporary workers. 

What Is the H-2B Visa?

The H-2B Visa allows US employers to hire temporary workers for temporary, seasonal, nonagricultural employment. The employment must be full-time and no less than 35 hours per week. Every year, the US Citizenship and Immigration Services (USCIS) issue 66,000 H-2B Visas, the first half on October 1 and the remaining half on April 1. This ensures the availability of H-2B Visas for employers no matter when the need arises. 

Why Has the H-2B Visa Program Increased in Popularity?

Many factors are contributing to the rise in popularity of the H-2B Visa program. One of these is the recent trouble faced by the H-1B Visa program which made it difficult for US employers to hire skilled foreign workers in positions that require a degree. 

The Covid-19 pandemic has discouraged many people from returning to work. Young people also no longer have to look for summer jobs as many extracurricular activities are available to them. As a result, the H-2B Visa cap has continued to run out before the end of the fiscal year for the last 5 years. In 2021, the H-2B Visa cap for the first half was met on November 16 and on February 12, 2021, for the second half of FY2021. 

How Do Employers Hire Temporary Foreign Workers Under the H-2B Visa Program?

The H-2B Visa mandates temporary employment of foreign workers for up to a year or less. Any employment exceeding 10 months will be considered non-temporary unless it is a one-time occurrence. The H-2B Visa Program allows US employers to hire temporary foreign workers based on the following:

One-time Occurrence: 

To qualify for this, employers must demonstrate that they have not hired foreign workers in the past and do not intend to hire them in the future. It also happens in case the employer has a permanent position that is otherwise available for a short period, creating the need to hire a temporary worker. This one-time occurrence may be extended up to 3 years. 

Seasonal Work: 

US employers can hire temporary foreign workers under the H-2 Visa if the position available is tied to a season, a temporary event, or a pattern that happens every year. The position will not be considered seasonal if the period during which the services are available is unpredictable, subject to change, or considered a vacation for the permanent employees. 

Peak-load Work: 

US employers sometimes require foreign workers temporarily to supplement their permanent workforce due to seasonal or short-time demands. However, temporary workers must not become part of the regular workforce. 

Intermittent Need: US employers can hire temporary workers if they can demonstrate that they are hiring only for occasional or intermittent needs. 

What Is the Process of Filing for an H-2B Visa As An Employer?

The USCIS has strict guidelines for the processing of the H-2B Visas. The employer must follow the following procedures and deadlines:

Obtain the ETA 9141, Request for Prevailing Wage Determination:

Employers are required to obtain a Prevailing Wage Determination from the National Prevailing Wage Center before filing a petition for the H-2B Visa to the Department of Labor (DOL). The DOL takes anywhere from 30 to 60 days to process this request. Keeping in account the possibility of delays, the employer can expect H-2B Visa processing to begin within 150 days. However, it may get stretched to 180 to 210 days, or 6 to 7 months. 

Submit Relevant Documents: 

Once the employer has received their ETA 9141, they can submit the ETA 9142, Application for Temporary Employment Certification to the Chicago Processing Center through the DOL’s portal-

The employer will be required to submit the following documents with their ETA 9142B:

  • A signed G-28, Notice of Entry, if applicable
  • Signed Appendix B
  • Draft of the job offer letter for the state workforce agency (SWA) for placement
  • Receipt of submission of the job offer letter draft to the SWA
  • Statement providing recruiting information or assurance that no third party was involved in the hiring process
  • Submit ETA 9141, Prevailing Wage Determination
  • Other supporting documents classifying the need for hiring temporary foreign workers

How Does the Department of Labor (DOL) Process H-2B Visa Applications?

Before 2018, the USCIS used to process H-2B Visa petitions based on the day they were received. However, in 2018, the application received by the DOL exceeded the statutory visa cap by 250%. To deal with this, the DOL said that it would assign the H-2B application based on the date and time they were received, down to the millisecond. This came to be known as the “Millisecond Rule.”

In 2019, the applications again exceed the statutory visa cap by 300%. This crashed the DOL system as more than 22,900 people tried to log in on the server at the same time. Therefore, in 2019, the DOL abandoned the Millisecond rule for people who filed their applications during the initial three calendar days of the statutory filing period. So, if you applied between April 1- April 4, 2022, your application will be assigned for processing randomly, instead of based on the Millisecond rule.

The DOL assigns a unique random number to each application and groups them together to issue a Notice of Acceptance or Notice of Deficiency based on the applicant’s eligibility.

What Happens If You Receive a Notice of Deficiency?

If a Notice of Deficiency is issued to the employer, then they will have 10 days to respond with additional documentation. They may upload it directly through their FLAG account or send an email to

Usually, a NOD is issued to a new H-2B employer to provide further documentation about the nature of the position, remuneration, production summaries, etc. 

What Happens If You Receive a Notice of Acceptance?

To get an NOA, the DOL requires employers to post the vacancy on a new national website: This vacancy must be posted in 2 conspicuous places for at least 15 business days, that is a total of 3 weeks period. As mentioned above, this draft job offer must also be sent to the SWA for placement. The NOA will state the date when the employer will be required to submit their recruitment report stating the result of their recruitment activities as mandated by the DOL.

What Are Obligations of Employers Under the H-2B Visa Program?

The DOL requires US employers in the H-2B Visa program to hire temporary foreign workers for a full-time position that requires at least 35 hours of work per week. The employer must also adhere to the prevailing wage rate for the occupation. The Fair Labor Standards Act also requires employers to pay overtime for any work performed over 40 hours per week. 

All workers performing the same or similar job duties must be paid the same unless there is a legally valid reason for the difference in pay. The DOL conducts audits to ensure compliance. If the law requires deduction from wages, then they must be implemented. Any other deductions must be disclosed in the offer letter, for example, deductions for the fair market value of lodgings, facilities provided to the employee. The employer must also provide Workers Compensation Insurance for all workers.

What Happens When the Employment Period Ends for H-2B Visa Workers?

Employers are required to notify the DOL and the USCIS if the temporary worker is terminated before their employment period ends. The reason for termination or departure before the set period must be explained in writing within 2 days via an email to the DOL at This petition should include the following information:

Reason for notification, for example, absconding, termination, early completion, etc

  • USCIS receipt/case number
  • Name, address, phone number, and FEIN of the petitioner
  • Name, date of birth, place of birth, last known address, and Social Security Number of the H-2B Visa worker

If the H-2B Visa worker is departing the US at the end of their employment term, then the employer must notify the DOL formally. 

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