In my Consulta Migratoria® column, I report on the countries that may participate in the H-2A and H-2B visa program in 2023-2024.
Table of Contents
- Bolivia joins list of countries eligible for H-2A and H-2B visas in 2023-2024
- Majority of Latin American and world nations remain in the same position
- Same requirements and processes for current H-2 workers
- Employers and employees should review the annual list at Federal Register
Each year, the U.S. Department of Homeland Security (DHS) announces an updated list of countries whose nationals are eligible to apply for the visas H-2A and H-2Bwhich allow U.S. employers and agents to legally hire foreign agricultural and non-agricultural workers on a temporary basis.
These temporary labor programs are essential for various U.S. industries such as agriculture, construction and hospitality, which have seasonal fluctuations or peaks in their demand for labor.
Knowing the changes to the list of eligible countries for 2023-2024 is crucial for both employers and workers to ensure compliance with the latest regulatory requirements for these important temporary work visas.
List of countries eligible for H-2A and H-2B visas in 2023-2024
According to the official DHS announcement on Federal RegisterThe changes to the list of countries whose nationals are eligible to apply for H-2A and H-2B visas during the period November 9, 2023 through November 8, 2024 are minimal:
- Inclusion of Bolivia as of November 9, 2023. Bolivian citizens may apply for these temporary work visas.
- Continuity for the vast majority of Latin American and world nations that were previously authorized. Its citizens remain eligible.
This means positive news for the thousands of Latin American and other workers who already had temporary work authorization under the H-2A and H-2B programs. They will be able to continue to renew and apply for these visas each year under the same rules.
The following table summarizes all countries and regions of the world whose nationals are currently eligible for H-2A and H-2B visas, following the announcement of changes for 2023-2024:
|Bosnia and Herzegovina||Yes||Yes|
|Papua New Guinea||Yes||Yes|
|Kingdom of Esuatini||Yes||Yes|
|Republic of Cyprus||Yes||Yes|
|Republic of Mauritius||Yes||Yes|
|Republic of South Africa||Yes||Yes|
|Saint Vincent and the Grenadines||Yes||Yes|
General eligibility requirements for H-2A and H-2B visas
In order for a foreign worker to qualify for an H-2A or H-2B temporary visa, several requirements established primarily by DHS and the U.S. Department of Labor (DOL) must be met:
- Temporary need: The petitioning employer or U.S. agent must demonstrate that its hiring need is temporary in nature, whether for a one-time occasion, a seasonal need, or an extraordinary peak of work.
- Priority for U.S. workers: Attempts should be made to recruit and hire domestic workers first. Only if no suitable, willing and available U.S. candidates can be found can H-2A and H-2B foreign workers be chosen.
- Fair wages and conditions: The hiring of guest workers on H-2A or H-2B visas must not adversely affect the wages and other working conditions of U.S. workers employed in similar occupations.
- Labor certification: The U.S. employer or agent must obtain a temporary labor certification issued by the DOL (or Guam DOL in certain cases), certifying compliance with various temporary labor standards and necessity.
Numerical limits for H-2A and H-2B visas
In addition to the eligibility requirements, there are also certain numerical limits or annual "quotas" set jointly by DHS and DOL on the maximum number of H-2 visas that may be issued each fiscal year:
- H-2A Visas: There is no numerical limit due to the inherently variable and unpredictable nature of farming and its labor needs.
- H-2B Visas: The cap was set at 66,000 visas, at a rate of 33,000 for each half of the fiscal year. This amount could be increased annually if the U.S. Congress determines it necessary.
Some limited exceptions apply, for example certain workers returning in previous tax years do not count towards these total numerical caps.
The U.S. Congress establishes these annual limits seeking to balance the demands of private industry for sufficient temporary workers with the protection of jobs and job opportunities for U.S. domestic workers.
As of now, these numerical caps remain in effect without change for fiscal year 2023. Both employers and workers must take these caps into account when participating in the H-2A and H-2B visa programs.
Process for applying for H-2A and H-2B visas
U.S. employers and agents wishing to hire temporary foreign workers under the H-2A or H-2B visa programs must complete the following process regulated by DHS and DOL:
1. Request for labor certification First, the U.S. employer or agent must apply for and obtain from the DOL a temporary labor certification certifying insufficient U.S. labor, fair wages, and other required conditions.
2. Filing Form I-129 With the approved labor certification, the U.S. employer or agent then completes and files Form I-129 with the U.S. Citizenship and Immigration Services (USCIS), formally requesting H-2A or H-2B classification for the prospective worker(s).
Visa application at the consulate If USCIS approves the H-2A or H-2B petition, workers in need of a visa must make an appointment and apply for a temporary visa at the appropriate U.S. consulate in their home country.
4. Inspection and admission at U.S. port of entry. Finally, upon entry into the United States, the worker must appear before a U.S. Customs and Border Protection (CBP) officer at the port of entry, who will authorize formal admission as an H-2A or H-2B nonimmigrant if all documentation is in order.
This step-by-step process ensures that all applicable requirements are met before the foreign worker can begin work in the United States.
Validity periods and extension options for H-2A and H-2B visas
H-2A and H-2B visas are issued for specific periods of validity. For example:
- The H-2A and initial H-2B visas are usually granted for less than 1 year, depending on the dates of labor need, with a maximum of up to 3 years.
- H-2A or H-2B status can be extended in increments of 1 year at a time through the USCIS extension of stay process.
- The maximum cumulative period of stay in the United States in H-2A or H-2B status is 3 years.
- Once the 3 years have been reached, the worker must depart and remain outside the United States for an uninterrupted period of 3 months before qualifying again for an H-2A or H-2B visa.
- There are exceptions to the general regulations detailed above.
Both workers and employers should be sure to apply for extensions of status with USCIS in a timely manner and keep careful track of the validity periods of each H-2A or H-2B visa. So far, these parameters on validity periods and extensions remain unchanged for 2023.
Frequently Asked Questions about H-2A and H-2B Visas
How does DHS decide which countries to include or exclude from the list of H-2A and H-2B eligibles?
DHS takes into account a number of factors, including the country's cooperation on immigration issues, nonimmigrant visa departure failure rates, H-2A and H-2B application fraud, compliance with the terms of the H-2A and H-2B programs, and others that serve the U.S. interest.
For example, the level of visa fraud, overstays of non-immigrant visas and lack of cooperation in facilitating removals (deportations) of their citizens are considered.
The objective is to designate countries that comply with the standards and do not abuse the programs.
What requirements changed this year 2023 for H-2A and H-2B temporary work visas?
Very few. The list of eligible countries is updated every year, but the vast majority remain unchanged, including Latin American countries.
Labor processes and standards remain the same.
What kind of jobs can I get with an H-2A or H-2B visa in the United States?
Only certain types of jobs are eligible under the H-2A and H-2B visa program.
Some examples of jobs available under these programs include orchard worker, horticulture worker, farm worker, animal herder, gardener, seafood processor, construction worker, cook and dishwasher.
You can see the list of temporary and seasonal jobs available under the H-2A and H-2B visa program on the DOL website.
How can I find U.S. employers willing to sponsor H-2A or H-2B visas?
Only eligible U.S. employers or agents may file applications for foreign workers under the H-2A and H-2B visa programs. The process of applying for one of these visas is complicated and visas sell out quickly.
You can see the list of U.S. employers or agents who have filed applications for foreign workers under the H-2A and H-2B visa program by going to the DOL website. You can contact these employers or U.S. agents to ask if they have openings and if they would like to sponsor you.
In addition, you can contact U.S. trade and trade associations in your industry. Also, non-profit recruiting agencies or government offices in your country that connect qualified workers with employers in the United States.
USCIS only approves petitions from nationals of countries that the Secretary of DHS deems eligible to participate in the H-2A and H-2B program. There are exceptions.
How long can I legally work in the United States on an H-2A or H-2B visa? Is there a maximum number of years?
The maximum cumulative period that one may remain in H-2A or H-2B status is 3 years.
You are then required to leave the United States for an uninterrupted period of 3 months before you can apply for a new H-2A or H-2B visa.
Initially, visas are usually granted for less than 1 year, depending on the dates of labor need.
Can I bring my family with me to the United States while working on an H-2A or H-2B visa?
Yes, subject to approval, a spouse and unmarried children under the age of 21 may obtain an H-4 visa as dependents of an H-2A or H-2B visa worker to legally accompany him or her. But H-4 dependents are not authorized to work in the United States.
I am a worker with a valid H-2A or H-2B visa, does the announcement of changes to the list of eligible countries affect me?
No. This announcement does not affect the current status of workers who already had a valid H-2A or H-2B visa at the time of publication.
However, the announcement would apply to these workers if they apply for an extension of stay or a change of H-2A or H-2B status for employment on or after the effective date of the announcement.
Workers on other visas who wish to change to an H-2A or H-2B visa would also be affected by these changes when applying for such a change of status.
If I lose my H-2A or H-2B job, what options do I have to remain legally in the United States?
The employer or U.S. agent must immediately notify USCIS if an H-2A or H-2B visa holder loses his or her job.
Generally, the temporary worker must leave the country before his or her H-2A or H-2B stay expires or apply for a change to another immigration status for which he or she qualifies.
I am from a country not included in the list of eligible countries for H-2A and H-2B visas. Can I still qualify for one of these visas?
There are some limited exceptions.
In certain cases, USCIS may approve an H-2A/H-2B petition for a beneficiary from a non-included country if it determines that it is in the national interest. This is decided on a case-by-case basis depending on the circumstances.
An additional factor for H-2B is whether you qualify under certain exemptions of the National Defense Authorization Act. However, final eligibility will depend on all relevant factors in each case.
If you are from an ineligible country, you should consult with an immigration attorney about your individual options.
In summary, DHS announced minimal changes to the list of countries whose nationals are eligible to apply for H-2A and H-2B visas by 2023. Bolivia is a new addition, but the vast majority remain unchanged.
The requirements, processes and validity periods for these temporary work visas remain the same as in previous years. U.S. workers and employers and agents should be sure to review the updated official list of eligible countries for the 2023-2024 period, published by the DHS in the Federal Register.
By complying with the established requirements and deadlines, and completing the detailed steps to apply for an H-2A or H-2B visa, both employers and foreign workers can legally continue to participate in these important temporary work programs in the United States.
Anyone who has questions about U.S. immigration law, including H-2A and H-2B visas, should immediately consult with a licensed and experienced U.S. immigration attorney to determine their immigration legal options.
Dr. Nelson A. Castillo is an immigration attorney with over 20 years of legal experience and author of La Tarjeta Verde: Cómo Obtener la Residencia Permanente en los Estados Unidos (Green Card: How to Obtain Permanent Residence in the United States). He is a former President of the Hispanic National Bar Association and the Westlake South Los Angeles Neighborhood Council. For information on how to consult with Dr. Castillo, click here. click here.
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The purpose of this column is to provide general information. There can be no guarantee or prediction as to what will be the outcome of the information presented by Dr. Nelson A. Castillo. The information should not be taken as legal advice for any individual, case or situation. This column may be considered an advertisement under the Rules of Professional Conduct for attorneys in several states, including California and New York. Consult with an immigration attorney for personalized legal advice before beginning any immigration proceedings.