The H-2A & H-2B Visas

The “H-2A” Visa for Temporary Agricultural Workers

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. To qualify, the employer must show that the job is of a seasonal or temporary nature, that there are not enough U.S. workers available, and employing H-2A workers will not adversely affect the wages and conditions of similarly situated U.S. workers. This is first established through the Department of Labor by filing a temporary Labor Certification. After DOL approval, the employer files the I-129 petition with USCIS – who will take a second look at the nature of employment (seasonal or temporary). Once the I-129 petition is approved, prospective workers will apply for the H-2A visa at their local consulate.

The maximum period of stay in H-2A classification is three years. Generally, USCIS will grant H-2A classification for up to the period of time authorized on the temporary labor certification, which will reflect the seasonal or temporary nature of the employment. The H-2A can be extended in one-year increments if needed. An individual who has held H-2A nonimmigrant status for three years must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission as an H-2A nonimmigrant.

The H-2A category is limited to nationals of certain countries, and USCIS periodically updates the list to include new countries or remove existing ones. As of January 2021, eligible countries include: Andorra, Fiji, Madagascar, Argentina, Finland, Malta, San Marino, Australia, France, Mexico, Serbia, Austria, Germany, Moldova, Singapore, Barbados, Greece, Monaco, Slovakia, Belgium, Grenada, Slovenia, Brazil, Guatemala, Montenegro, Solomon Islands, Brunei, Honduras, Mozambique, South Africa, Bulgaria, Hungary, Nauru, South Korea, Canada, Iceland, The Netherlands, Spain, Chile, Ireland, New Zealand, St. Vincent and the Grenadines, Colombia, Israel, Nicaragua, Sweden, Costa Rica, Italy, North Macedonia, Switzerland, Croatia, Jamaica, Norway, Taiwan, Czech Republic, Japan, Panama, Thailand, Denmark, Kiribati, Papua New Guinea, Timor-Leste, Dominican Republic, Latvia, Paraguay, Turkey, Ecuador, Liechtenstein, Peru, Tuvalu, El Salvador, Lithuania, Poland, Ukraine, Estonia, Luxembourg, Portugal, United Kingdom, Romania, Uruguay, and Vanuatu. 

The “H-2B” Visa for seasonal, Temporary, Peak Load & Intermittent Workers

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs. To qualify, the employer must show that the need for labor is temporary, that there are not enough U.S. workers available, and employing H-2B workers will not adversely affect the wages and conditions of similarly situated U.S. workers. An employer’s “temporary” need can be described as a one-time occurrence, seasonal, intermittent, or a peak load need. The H-2B visa is capped at 66,000 per year (subject to change by order of USCIS), generally split between the two halves of each fiscal year.

As with the H-2A, the employer must file a temporary Labor Certification with the Department of Labor. After DOL approval, the employer files the I-129 petition with USCIS – who will take a second look at the nature of employment (temporary). Once the I-129 petition is approved, prospective workers will apply for the H-2B visa at their local consulate. The maximum period of stay in H-2B classification is three years. Generally, USCIS will grant H-2B classification for up to the period of time authorized on the temporary labor certification, which will reflect the seasonal or temporary nature of the employment. The H-2B can be extended in one-year increments if needed. An individual who has held H-2B nonimmigrant status for three years must depart and remain outside the United States for an uninterrupted period of three months before seeking readmission as an H-2B nonimmigrant.

The H-2B category is limited to nationals of certain countries, and USCIS periodically updates the list to include new countries or remove existing ones. As of January 2021, eligible countries include: Andorra, Fiji, Madagascar, Philippines, Argentina, Finland, Malta, San Marino, Australia, France, Mexico, Serbia, Austria, Germany, Singapore, Barbados, Greece, Monaco, Slovakia, Belgium, Grenada, Mongolia, Slovenia, Brazil, Guatemala, Montenegro, Solomon Islands, Brunei, Honduras, Mozambique, South Africa, Bulgaria, Hungary, Nauru, South Korea, Canada, Iceland, The Netherlands, Spain, Chile, Ireland, New Zealand, St. Vincent and the Grenadines, Colombia, Israel, Nicaragua, Sweden, Costa Rica, Italy, North Macedonia, Switzerland, Croatia, Jamaica, Norway, Taiwan, Czech Republic, Japan, Panama, Thailand, Denmark, Kiribati, Papua New Guinea, Timor-Leste, Latvia, Turkey, Ecuador, Liechtenstein, Peru, Tuvalu, El Salvador, Lithuania, Poland, Ukraine, Estonia, Luxembourg, Portugal, United Kingdom, Romania, Uruguay, and Vanuatu. 

The “CW” Visa for Employment in the Commonwealth of the Northern Mariana Islands

The Commonwealth of the Northern Mariana Islands (CNMI) is a string of islands in the northwest Pacific Ocean which, along with Guam, represents the western-most territory of the United States. A strategic location for U.S. military bases and exercises, CNMI has long enjoyed special immigration provisions to facilitate the flow of foreign labor into the Commonwealth to supplement the small resident workforce.

Those companies interested in employing foreign labor in the CNMI must be conducting regular business in the archipelago and offer employment consistent with their operations. However, this special “CW” visa status also requires employers to pay reasonable transportation costs to and from the island, as well as consider any U.S. citizens and nationals for employment before looking beyond the U.S. territorial limits. Also, CW beneficiaries are not permitted to travel anywhere else in the United States other than the CNMI.

This visa is valid for one year at a time (plus a 10-day grace period) but one-year extensions can be obtained. The CW visa holder may also change employers in the same way an H-1B worker can – meaning the new employer must file a new petition for the foreign national. Spouses and minor children of can accompany the principal CW visa holder in a dependent status. Beneficiaries of the CW visa are not precluded from adjusting their status to permanent resident if otherwise eligible.

The CW visa category was intended to be a temporary classification but it has received several consecutive extensions by multiple administrations. On July 24, 2018, President Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018, extending the CW-1 program through Dec. 31, 2029, and increasing the CW-1 cap to 13,000 for FY2019.