In order to issue an H-2B certification to an employer, the Department of Labor (Department) must determine that:

  1. there are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers, and that

  2. the employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To participate in the H-2B program, an applicant must be:

  • an employer possessing a valid Federal Employer Identification Number (FEIN),

  • that has a place of business (i.e., physical location) in the United States, and

  • a means by which it may be contacted for employment.

The employer's job opportunity (opportunities) must be:

  • temporary (9 months or less, except one-time occurrences),

  • full-time (35 or more hours per week), and

  • non-agricultural employment within a specified area(s) of intended employment.

The H-2B temporary non-agricultural program permits employers who meet the program requirements to hire nonimmigrant workers to temporarily come to the U.S. and perform non-agricultural services or labor based on the employer's temporary need. The employer applicant must establish that its need for non-agricultural services or labor is temporary in nature, regardless of whether the underlying job is permanent or temporary.

Temporary need must be established as one of the following:

  1. one-time occurrence;

  2. seasonal need;

  3. peakload need; or

  4. intermittent need.

With the exception of a one-time occurrence need which can last up to 3 years, temporary need will not be approved for longer than 9 months.

The Immigration and Nationality Act (INA) and Departmental regulations issued jointly with DHS establish employer requirements and numerous worker protections with respect to wages and working conditions. The Department's Wage and Hour Division (WHD) has responsibility for enforcing provisions of worker contracts and applicable employment laws.