As an employer seeking to hire foreign workers, understanding the differences between H-2A and H-2B visa programs is crucial for determining which option best suits your needs. This article will help you navigate the key aspects of each program.

H-2A Visa Program

Overview

The H-2A program allows U.S. agricultural employers to hire foreign workers for temporary or seasonal agricultural work.

Key Features

• Eligibility: For U.S.-based agricultural businesses with a valid Federal Employer Identification Number (FEIN).

• Job Type: Seasonal or temporary agricultural labor (e.g., planting, cultivating, harvesting, and hauling crops to storage/market, caring for livestock, and other agricultural tasks performed on a farm or in the employment of a farmer).

• Duration: Up to 10 months.

• Cap: No annual cap on the number of H-2A visas issued.

Key Employer Obligations

• Provide free housing that meets safety standards.

• Provide meals or kitchen facilitiesCover inbound and outbound transportation costs.

• Pay the highest of the Adverse Effect Wage Rate (AEWR), prevailing wage, or minimum wage.

• Guarantee employment for at least 75% of the contract period.

• Current Workers’ Compensation policy.

H-2B Visa Program

Overview

The H-2B program allows U.S. employers to hire foreign workers for temporary or seasonal non-agricultural jobs.

Key Features

Eligibility

For U.S. employers with a temporary need for non-agricultural workers.

Job type

• Seasonal, peak load, intermittent, or one-time occurrence non-agricultural jobs (e.g., landscaping, hospitality, construction).

• You must be able to demonstrate that the job opportunity is non-agricultural, if job-opportunity is ag-adjacent.

• You must be able to demonstrate that each worker requested represents a bonafide job opportunity.

Duration

• Seasonal, Peak-Load, or Intermittent: Up to 9 months.

• One-Time Occurance: Up to one year, with possible extensions up to 3 years.

Cap

Annual limit of 66,000 visas, with some exceptions:

• 33,000 for the first half of the government fiscal year (October 1 – March 31)

• 33,000 for the second half of the government fiscal year (April 1 – September 30).

• Given the competitive nature of the program, applications requesting an employment start date other than October 1 or April 1 will be capped out.

• Historically, supplemental visas have been issued every year since FY2021, but are not guaranteed and issued at DHS/DOL discretion.

Key Employer Obligations

• Pay at least the highest prevailing wage across their application.

• Cover inbound and outbound transportation costs after 50% of the contract period.

• Guarantee employment for at least 75% of the contract period.

• No requirement to provide housing, but any employer-provided housing must meet safety standards.

  • Employers are allowed to deduct the “reasonable” cost of housing from worker’s paychecks that choose to live in employer-provided housing.

  • Employer-provided housing must be optional to workers and language saying as such must be included on employer’s application and job order, if housing is provided.

• No requirement to provide daily transportation, but any employer-provided transportation must meet safety standards.

• Must conduct positive recruitment efforts, for at least fifteen (15) days after the Notice of Acceptance is issued, and submit a report to the DOL in connection with their H-2B application. The employer must accept and hire any applicants who are qualified and available, and may reject U.S. applicants only for lawful, job-related reasons up until 21 days before the requested start date of need.

Key Differences

Nature of work

• H-2A: Agricultural work only.

• H-2B: Non-agricultural work.

Visa cap

• H-2A: No annual limit.

• H-2B: Annual cap of 66,000 (with some exceptions).

  • Due to the cap, H-2B workers that are terminated or abandon the job contract cannot be replaced.

  • H-2B Visas are tied to the worker, not the employer.

Housing requirements

• H-2A: Employers must provide free, approved housing.

• H-2B: No requirement to provide housing.

Wage rates

• H-2A: Must pay the highest of AEWR, prevailing wage, or minimum wage.

• H-2B: Must obtain a prevailing wage determination and pay at least the highest prevailing wage across their entire application, regardless of duties or geographic area.

Transportation costs

• H-2A: Employer covers all inbound and outbound transportation costs.

• H-2B: Employer covers all inbound and outbound transportation costs.

Which Visa Is Right for You?

Choose H-2A if:

• You need workers for direct agricultural labor.

• You can provide housing and meet the specific wage requirements.

• You need a large number of workers (no visa cap).

Choose H-2B if:

• You need workers for non-agricultural jobs (e.g., landscaping, food processing).

• You have a seasonal or temporary need outside of direct farming or agricultural-adjacent activities.

• You can't provide housing but can meet other program requirements.

Key Considerations

1. Application process: Both programs require labor certification and multiple steps. Start the process well in advance of your need.

2. Compliance: Both programs have strict compliance requirements. Ensure you can meet all obligations before applying.

3. Timing: H-2B visas are capped and can be competitive. Apply early in the cycle for the best chance of approval.

4. Cost: Factor in all costs, including wages, transportation, housing (for H-2A), and application fees.

5. Long-term planning: Consider your recurring labor needs and how these programs fit into your overall workforce strategy.