Preparing for the H-2B Temporary Non-Agricultural Worker Filing Season – Do Not Miss the H-2B Lottery

January 1 is New Year’s Day, and it is also the opening of the H-2B filing season for employers seeking to sponsor H-2B workers on April 1, 2024, or later. Due to a steady labor shortage for essential workers, there has been exponential growth in the use of the H-2B visa. The H-2B program allows United States employers to sponsor work visas for temporary non-agricultural workers. There is no educational degree requirement or minimum experience required for the H-2B visa.

Why is there an H-2B Lottery?

As the number of H-2B applications being filed usually exceeds the available number of visas each fiscal year, the Department of Labor (DOL) implemented a processing system, commonly referred to as the “H-2B Lottery.” Employers seeking foreign labor to meet their temporary labor needs must ensure they timely file H-2B petitions to make it into the lottery.

There are only 66,000 H-2B visas available each fiscal year. United States Citizenship and Immigration Service (USCIS) releases these visas in two waves: 33,000 visas are issued on October 1 for the first half of the fiscal year, and 33,000 visas are issued on April 1 for the second half of the fiscal year. Over the past several years, the visas have consistently been claimed within the first available date of filing, due to the high demand for these visas. As a result, the DOL has established a lottery system for the H-2B applications.

Therefore, it is important to begin the H-2B process early to be ready for filing between January 1-3 (this coming year, it will be January 2-4 because of leap day) for employers seeking to employ H-2B workers with an employment start date in the second half of the fiscal year.

Due to this high demand, the USCIS and DOL have also issued supplemental visas over the past several years. Most recently, in fiscal year 2023, the USCIS and DOL added 64,716 supplemental visas: 20,000 visas for nationals of El Salvador, Guatemala, Honduras and Haiti; 18,216 available for returning workers in the first half of the fiscal year, beginning on October 1; 16,500 available for returning workers in the second half of the fiscal year, beginning on April 1; and 10,000 available for returning workers in the late second half of the fiscal year, beginning on May 15, 2023. “Returning workers” are any foreign nationals who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years.

A significant advantage of the H-2B visa is that it does not require a minimum educational requirement. Unlike other visa types (most notably the H-1B and TN visas), the H-2B visa does not require that the foreign nationals have a certain level of education. Therefore, any worker can be sponsored who meets the requirements of the position under the H-2B program.

Is Your Need Temporary?

To determine whether the H-2B visa program is a viable option to meet your labor needs, an employer must first determine whether its need is temporary as defined by the DOL. Traditionally, the H-2B program has been used by employers in industries such as landscaping, resort/hospitality, amusement/recreation, or construction. However, the H-2B visa is not limited to a specific industry. Instead, an employer must simply establish that the foreign H-2B employees have been hired to perform temporary services or labor, that they will not be displacing U.S. workers and that this employment would not adversely affect the wages and working conditions of U.S. workers.

An employer must establish the need meets one of the four definitions of temporary need under the H-2B program:

One-time occurrence

The employer must show one of the following situations:

1. the employer has not employed workers to perform the services or labor in the past, and the employer will not need workers to perform the services or labor in the future; or
2. the employer has an employment need that is otherwise permanent, but a temporary event has created the need for a temporary worker. This one-time need may last up to three years.

Seasonal need

The services or labor are traditionally tied to a season of the year by a temporary, reoccurring event or pattern. The employment is not seasonal if the period during which the services or labor are needed is unpredictable or considered a vacation period for the employer’s permanent employees. Typically, a seasonal need cannot be more than 10 months.

Peakload need

The employer regularly employs permanent workers to perform the services or labor, and it needs to supplement its permanent staff on a temporary basis due to seasonal or short-term demands with temporary employees who will not become part of the regular operations. To document this need, an employer must show that it does usually employ individuals in the position, but there is a definable temporary period of time when it needs additional workers. Typically, a peakload need cannot be more than 10 months.

Intermittent need

The employer must establish that it has not employed permanent or full-time workers to perform the services or labor, but intermittently needs temporary workers for short periods. Typically, an intermittent need cannot be more than 10 months.

Note that employers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam do not need to prove that the need for H-2B workers is temporary.

H-2B Filing Timeline

The H-2B process requires that employers follow a very strict timeline. Below is the recommended timeline for an employer who has a need for H-2B employees starting April 1, 2024.

File Prevailing Wage Request: July 2023 through August 2023

It can take up to 60 days to be issued and an employer must have the prevailing wage determination to file their ETA 9142B H-2B petition.

File ETA 9142B H-2B Petition: January 2-4, 2024

File H-2B petitions for temporary employment start date of April 1. Applications received between January 2 and January 4 will be randomly assigned to processing groups (the H-2B Lottery), with Group A being reviewed first.

It is never too early to start the H-2B process but to ensure you are in the H-2B lottery, the time to start is now.

For additional information, including copies of our H-2B Memo and H-2B Flow Chart, please contact our H-2A/H-2B Immigration Solutions Team.