Foreign Labor Certification

The H-2A Temporary Agricultural Program allows agricultural employers who anticipate a shortage of domestic workers to bring non-immigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Employment is of a seasonal nature when it is tied to a certain time of year by an event or pattern, such as a short annual growing cycle and requires labor levels above what is necessary for ongoing operations. Employment is of temporary nature when the employer’s need to fill the position with a temporary worker will, except in extraordinary circumstances, last no longer that one year.

The H-2B Temporary Non-agricultural Program permits employers who meet the program requirements to hire non-immigrant 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:

• One-time occurrence
• Seasonal need
• Peakload need
• Intermittent need

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

H-2B Requirements 

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

• 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
• 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)
• Be a place of business (i.e. a physical location) in the United States
• Possess a means by which it may be contacted for employment

The employer’s job opportunity must be:

• Temporary (9 months or less, except one-time occurrences)
• Full-time (35 or more hours per week)
• Non-agricultural employment within a specific area(s) of intended employment