H-2A or H-2B: Which Seasonal Worker Visa Fits Your Business?

The H-2A vs H-2B question is usually answered by the work itself, not by the employer’s preference. H-2A covers temporary or seasonal agricultural labor. H-2B covers temporary non-agricultural work such as landscaping, hotels and resorts, seafood processing, and construction. When the work is clearly one or the other, there is no choice to make. The hard cases sit on the line between them, and for those the differences in cap, wages, housing, and filing dates matter a great deal. Our H-2A farmworker visa and H-2B seasonal worker visa teams work together on operations that straddle both.

Where agricultural work ends

H-2A applies to agricultural labor as defined by the Internal Revenue Code and the Fair Labor Standards Act: growing and harvesting crops, raising livestock, and handling crops in their unmanufactured state on the farm. H-2B applies to everything else that meets the temporary need test.

The line runs through some familiar businesses. A nursery that grows trees and shrubs uses H-2A; a company that plants them in clients’ yards uses H-2B. A grower packing its own produce in an on-farm shed is agricultural; a commercial packinghouse handling many growers’ crops, or a plant that cans or freezes them, may not be. Seafood processing is H-2B. Our article on which farm jobs qualify for H-2A walks through the definitions in more detail.

A worker can only do the duties on the certification under which they were admitted. If your operation covers both sides, for example a farm with a landscaping arm, you may need two separate filings with separate workers.

The cap: none versus 66,000

This is the biggest practical difference. The H-2A has no annual cap. Any employer that qualifies and meets the program’s requirements can bring in as many workers as it is certified for.

The H-2B is capped at 66,000 workers per fiscal year, split into two halves of 33,000. Demand for the spring and summer half routinely exceeds supply, and employers who file late in the window can be shut out. In most recent years Congress has authorized DHS to release supplemental H-2B visas, but the number, timing, and eligibility conditions change from year to year. Our explainer on how the H-2B cap works covers the mechanics.

Wages

H-2A employers pay the highest of the adverse effect wage rate, any applicable prevailing wage, a collective bargaining rate, or the federal or state minimum wage. The AEWR is often well above the local minimum wage.

H-2B employers first obtain a prevailing wage determination from DOL on Form ETA-9141, then pay at least the highest of that prevailing wage or the federal, state, or local minimum wage. Because most H-2B jobs are covered by the overtime rules of the Fair Labor Standards Act and most farm jobs are exempt from them, overtime costs often weigh more heavily on the H-2B side.

Both programs have a three-fourths guarantee. The H-2A guarantee is measured over the whole contract period. The H-2B guarantee is measured in 12-week blocks, or 6-week blocks for shorter certifications.

Housing, meals, and transportation

This is where the H-2A costs more. An H-2A employer must provide free housing that passes inspection to every worker who cannot reasonably return home each night, plus either three meals a day or free cooking facilities, plus free daily transportation between housing and the fields.

An H-2B employer has no general duty to provide housing, though if it does, any charges must be lawful and disclosed. Both programs require reimbursement of inbound travel and subsistence once the worker completes half of the employment period, earlier where federal minimum wage law requires it, and return transportation at the end. The H-2B rules also specifically require visa and related fees to be reimbursed in the first workweek.

Filing calendars and recruitment

The two programs run on different clocks:

• H-2A: job order 60 to 75 days before the date of need, the DOL application at least 45 days before, and no cap to race
• H-2B: a prevailing wage determination first, the DOL application 75 to 90 days before the date of need, and an I-129 filed no more than 120 days before that date

Recruitment duties differ as well. H-2A employers must hire qualified U.S. applicants until half of the contract period has passed. H-2B employers must accept qualified U.S. applicants until 21 days before the date of need.

How to decide when both could apply

When the work could arguably fit either program, start with the definitions rather than the costs. Choosing H-2B for agricultural work, or H-2A for non-agricultural work, does not save money; it gets the application denied. When the classification is truly open, the H-2A’s lack of a cap often outweighs its higher housing and wage costs for employers who cannot afford to lose a season. When the work is clearly non-agricultural, the H-2B timeline and its temporary need requirement become the planning problem.

If you are not sure which seasonal worker program fits your operation, a consultation with Capitol Law Partners can map the right path for your situation. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our H-2A seasonal agricultural visa page or schedule a consultation.