H-2A and H-2B Temporary Worker Programs: Certification and Worker Protections

H-2A and H-2B are the two temporary worker programs for jobs that do not require a degree. H-2A is for agricultural work; H-2B is for everything else seasonal — landscaping, seafood processing, hospitality, amusement, construction tied to a peak season. Both begin at the Department of Labor, which must issue a temporary labor certification before an employer can file Form I-129 with USCIS. The rules for both live in 20 C.F.R. Part 655.

The most important difference: H-2B is capped by statute and H-2A is not. The second most important: H-2A carries a set of worker protections — wages, housing, transportation, a guaranteed share of the contract hours — that H-2B does not fully mirror.

Three agencies, in a fixed order

1. State workforce agency and DOL. The employer files a job order and then an application for temporary labor certification through the Foreign Labor Application Gateway. DOL tests whether U.S. workers are available and whether hiring foreign workers would harm the wages and conditions of similarly employed U.S. workers.
2. USCIS. With the certification in hand, the employer files the I-129 petition naming the classification, the period, and either the named workers or unnamed positions.
3. The consulate, then the border. Approved workers apply for visas abroad, and admission is a separate decision made at the port of entry.

Nothing in that chain can be skipped or reordered. A petition filed without a valid certification is not a fixable filing error; it is a defective petition.

The H-2B cap and why timing dominates

Congress sets an annual numerical limit on new H-2B workers, and the allocation is split between the two halves of the fiscal year. Demand routinely exceeds supply, so filing windows matter more than filing quality once the basics are right. Certain workers are exempt from counting against the cap, including some returning workers in particular fiscal years and workers performing fish roe processing.

As of mid-2026: in several recent years Congress gave the Department of Homeland Security authority to release supplemental H-2B numbers beyond the statutory cap, and DHS used it. That authority has been granted year by year rather than made permanent, so anyone planning a season should confirm on the USCIS site whether a supplemental allocation exists for the season in question, and on what conditions.

H-2A has no such cap. Its constraint is seasonality: the need must be temporary or seasonal, tied to a crop cycle or an event, and an employer cannot use the program to fill a job that exists all year.

What an H-2A employer owes the worker

These obligations are contractual as well as regulatory: the certified job order becomes the work contract, and it binds the employer to U.S. and foreign workers alike.

Enforcement of the field-level protections sits largely with the Wage and Hour Division, whose agricultural employment pages also cover the separate migrant and seasonal worker protection statute that applies to many of the same workplaces. DOL issues and revises the wage rates itself; this publication does not quote figures, because the numbers move and are regional.

H-2B: fewer duties, but not none

H-2B employers do not owe housing, and the wage standard is a prevailing wage determination rather than an adverse effect rate. But the program's rules do impose a corresponding guarantee of offered hours across the certified period, require disclosure of the job terms to the worker, restrict deductions, and require the employer to arrange or pay for certain transportation costs when the worker completes or is dismissed from the job.

• The job order terms, in a language the worker understands, provided no later than the start of work.
• Records of hours offered and hours worked, which is how the guarantee is later proved or disproved.
• Payment at least twice a month or according to the prevailing local practice, with itemised statements.
• No deductions that were not disclosed, and none that push pay below the required rate.

Fees, recruiters, and the pressure point in both programs

The rules place the cost of obtaining certification and of recruitment on the employer, and prohibit anyone in the chain from charging a worker a fee for the job placement. That prohibition is the reason employers are required to disclose the identity of foreign recruiters and to contractually forbid them from collecting fees.

Watch out: A worker who paid a recruiter abroad often does not know that the payment was prohibited. The employer's liability does not disappear because the payment happened in another country or through an intermediary. Employers that discover a fee has been charged should treat it as a compliance event immediately, not at the end of the season.

The wider question of which sponsorship costs may never be passed to a worker differs by program, and confusing one program's rule for another's is a common and expensive error — our explainer on which immigration fees an employer must pay sets out the differences. Employers running seasonal crews across several years, with returning workers, recruiters in more than one country, and an audit history, often keep immigration legal counsel involved through the certification stage rather than only when a petition is questioned.

Common questions

Can an H-2A or H-2B worker change employers?

Only to another employer with an approved petition for that worker. The status is tied to the petitioning employer and the certified job. A worker who wants to move needs the new employer to file, and in some circumstances may begin work when the new petition is filed rather than approved. Simply walking to a different farm or hotel is a status violation, even if the work is identical.

Which countries can send H-2A and H-2B workers?

The Department of Homeland Security publishes a list of countries whose nationals are eligible for the programs, and it is revised periodically. Nationals of countries not on the list can still be petitioned, but only where USCIS finds it is in the U.S. interest, decided case by case. Because the list changes, check the current version on the USCIS site before recruiting in a particular country.

What happens if the season ends early or the crop fails?

In H-2A the three-quarters guarantee still applies for the contract period, subject to the rules on contract impossibility, which allow a contract to be terminated early for weather or other conditions beyond the employer's control only under defined conditions and with notice duties. Employers cannot simply send workers home and stop paying. Where a contract is cut short properly, return transportation obligations still attach.

Do these workers have the same workplace rights as U.S. employees?

Generally yes for wage, hour, safety, and anti-retaliation protections that apply to the workplace, plus the extra program-specific promises in the job order. Retaliation for raising a complaint is prohibited, and the job order terms are enforceable. Practical access to those rights is the harder issue, which is why the disclosure and recordkeeping duties exist.

Working through a season without a compliance failure

Start earlier than feels necessary. Build the job order around the real dates and duties, because the certified order becomes the promise. Register in the Office of Foreign Labor Certification systems, confirm the current forms and processing sequence there, and file through FLAG rather than assuming last season's steps still apply.

Then keep three records live all season: hours offered against hours worked, every deduction and its written basis, and every payment made to or by a recruiter. Those three are what an audit examines. Petition-side correspondence should be tracked with the same discipline — our explainer on reading USCIS receipt notices covers how, and crews leaving the country between seasons should check our guide to travel while a case is pending.