How to Sponsor Temporary Workers for Your Busy Season Under the H-2B Visa Program

As businesses across various industries gear up for their peak seasons, many face the challenge of finding enough qualified workers to meet increased demand. The H-2B visa program offers a solution by allowing U.S. employers to bring foreign nationals to the United States for temporary nonagricultural work.

What is the H-2B Visa Program?

The H-2B visa is a nonimmigrant visa category that permits U.S. employers to hire foreign workers for temporary nonagricultural jobs. This program is particularly useful for businesses that experience seasonal fluctuations in labor needs, such as hotels, restaurants, landscaping companies, and construction firms.

Key Features of the H-2B Program:

1. Temporary Nature: The work must be temporary, defined as a one-time occurrence, seasonal need, peak load need, or intermittent need.
2. Annual Cap: There’s a statutory cap of 66,000 H-2B visas per fiscal year, with some exceptions and potential increases.
3. Duration: H-2B status can be granted for up to one year, with possible extensions up to a total of three years.
4. Labor Certification: Employers must obtain a temporary labor certification from the Department of Labor (DOL) before petitioning for H-2B workers.

Step-by-Step Guide to Sponsoring H-2B Workers

Step 1: Assess Filing Strategy and Define Employer’s Need

Before initiating the H-2B process, the first and most critical step is developing a filing strategy. The H-2B visa program is highly regulated, subject to visa quotas, and involves a lottery system, making it essential to determine whether this visa is a viable solution for the employer’s workforce needs.

Key factors to assess include:

• Timing and Feasibility – Confirm that the required filing deadlines, processing times, and lottery system align with the employer’s hiring needs.
• Nature of the Temporary Need – Determine whether the need qualifies under one of the four temporary categories (seasonal, peak load, one-time occurrence, or intermittent) and develop a strategy to properly document it.
• Workforce Planning – Define the number of workers needed, job locations, and duration of employment to ensure compliance with H-2B requirements.

By carefully structuring an H-2B filing strategy upfront, employers can improve their chances of success and avoid costly delays.

Step 2: Begin the Application Process Early

The H-2B process is time-consuming and subject to strict deadlines. Start at least 5 months and ideally 6 months before your need for workers:

1. Register for the DOL’s FLAG System: This online portal is used for filing H-2B-related forms.
2. Obtain a Prevailing Wage Determination (PWD): Submit Form ETA-9141 to the Department of Labor (DOL). This determines the minimum wage you must pay H-2B workers.

Step 3: File for Temporary Labor Certification

1. Submit Form ETA-9142B, Application for Temporary Employment Certification, to the DOL.
2. Include all required supporting documentation, such as evidence of your temporary need and that you submitted the job opportunity to your local State Workforce Agency.

Step 4: Conduct Recruitment of U.S. Workers

Before you can hire foreign workers, you must demonstrate that qualified U.S. workers are not available:

1. Submit a job order to the State Workforce Agency (SWA).
2. Contact former U.S. workers who were employed in the past year.
3. Post a notice of the job opportunity at the place of employment.
4. Submit a report to the DOL of your recruitment outcomes.

Step 5: File Form I-129 with USCIS

Once you receive the temporary labor certification for the DOL:

1. File Form I-129, Petition for a Nonimmigrant Worker, with U.S. Citizenship and Immigration Services (USCIS).
2. Include the original temporary labor certification and all required supporting documents.
3. Pay the necessary filing fees.

Step 6: Prospective Workers Apply for Visas

After USCIS approves your petition:

1. Provide workers with the petition approval notice.
2. Workers outside the U.S. must apply for H-2B visas at a U.S. embassy or consulate.
3. Some workers may be eligible for visa-free travel and can apply for admission at a U.S. port of entry.

Best Practices for H-2B Sponsors

Successfully navigating the H-2B visa process requires careful planning and strict compliance with complex regulations. Given the challenges involved, it is nearly impossible for an employer to complete this process without legal assistance. Starting with a well-structured strategy alongside an experienced immigration attorney is crucial.

To ensure a smooth process and maintain compliance:

1. Start Early & Plan Strategically – The H-2B process is highly regulated and time-sensitive. Work with an immigration attorney early to develop a clear strategy for recruitment, application timing, and compliance.
2. Maintain Detailed Records: Keep comprehensive documentation of all steps in the H-2B process, including recruitment efforts and worker records.
3. Ensure Accurate Job Descriptions: Clearly define job duties, requirements, and terms of employment to avoid issues with DOL or USCIS.
4. Comply with All Labor Laws: Adhere to all applicable federal, state, and local labor laws, including proper payment of wages and provision of working conditions.
5. Provide Required Notices: Post all required notices at the worksite, including the H-2B worker rights poster.
6. Monitor Cap Availability: Stay informed about the H-2B cap and potential supplemental visa allocations.
7. Consider Legal Assistance: Given the complexity of the H-2B program, working with an experienced H2-B visa immigration attorney to help navigate potential pitfalls and ensure compliance is essential.

Our firm provides comprehensive legal support to help employers secure H-2B workers efficiently and in full compliance with immigration laws.

Recent Changes and Considerations

The H-2B program is subject to frequent regulatory changes and policy updates. As of 2025, key considerations include:

1. Supplemental Visa Allocations: In recent years, the Department of Homeland Security has often made additional H-2B visas available. Stay informed about potential increases to the cap.
2. Returning Worker and Country-Based Exemption: H-2B workers from certain nationalities or who have previously held H-2B status may be exempt from the annual cap.
3. Increased Scrutiny: USCIS and DOL have heightened their scrutiny of H-2B petitions. Ensure all applications are thoroughly prepared and well-documented.
4. Wage Requirements: Pay close attention to prevailing wage determinations and any changes to wage calculation methodologies.
5. Heightened Audit and Site-Visit Requirements – Employers should be prepared for increased DOL and USCIS audits and unannounced site visits. Compliance is more critical than ever, as violations can lead to penalties, denials, or debarment from the program.

Potential Challenges and How to Address Them

1. Cap Limitations: The limited number of H-2B visas can make it challenging to secure workers. Consider alternatives like the J-1 or TN visa programs.
2. Processing Delays: Build ample time into your hiring timeline to account for potential delays in processing.
3. Recruitment Challenges: Thoroughly document all U.S. worker recruitment efforts to demonstrate compliance with program requirements.
4. Changing Regulations: Stay informed about regulatory changes and adjust your practices accordingly. Consider joining industry associations that monitor H-2B developments.
5. Worker Retention: Develop strategies to encourage workers to return in subsequent seasons, which can streamline the process in future years.

Leveraging the H-2B Program for Your Business Success

The H-2B visa program can be a valuable tool for businesses facing seasonal labor shortages. While the process is complex, careful planning and attention to detail can help you successfully navigate the program and secure the workers you need for your busy season.

At De Wit Immigration Law, our attorneys can help you develop a comprehensive strategy for your H-2B petitions and address any challenges that may arise during the process.

Don’t let labor shortages hold your business back during peak seasons. Contact De Wit Immigration Law today to schedule a consultation and learn how we can help.