The H-2B visa process involves three agencies and five stages, and the order never changes: a prevailing wage determination from DOL, an application for temporary labor certification with a job order, recruitment of U.S. workers, a Form I-129 petition to USCIS, and visa applications at U.S. consulates. Each stage depends on the one before it, and two of them have fixed windows counted back from your date of need. Our H-2B employer petition services run this sequence every season. Here is what happens at each step and how to keep the calendar from slipping.

Before you start: temporary need and the cap

Two questions come first. Is your need temporary, and of which type? And will your workers count against the H-2B cap, and if so, which half? The first is covered in our article on H-2B temporary need. The second matters because the cap fills, often quickly, and your filing date determines whether your workers get numbers.

Step 1: Prevailing wage determination (Form ETA-9141)

The employer asks DOL’s National Prevailing Wage Center for a prevailing wage determination for the occupation and the area of employment. You must have a determination that is valid on the day you file the labor certification application, so the request goes in well before the filing window opens. The prevailing wage center gets busy in the months before the January filing rush, so this is the step to start first.

The wage is normally based on government survey data for the occupation and area, unless an acceptable private survey or a collective bargaining agreement applies. You will pay at least that wage, or the federal, state, or local minimum wage if higher, to every H-2B worker and to U.S. workers in corresponding employment. Our explainer on prevailing wage determinations covers how DOL sets the number.

Step 2: The H-2B application and job order (75 to 90 days out)

The employer files Form ETA-9142B, the H-2B Application for Temporary Employment Certification, with DOL’s Chicago National Processing Center through FLAG, together with the job order. The window is strict: no more than 90 and no fewer than 75 calendar days before the date of need.

The package includes the statement of temporary need, the number of workers, the job duties and requirements, the wage, the three-fourths guarantee, travel reimbursement terms, and the identity of any foreign labor recruiters, along with the employer’s agreements prohibiting them from charging workers fees. DOL reviews it and issues either a Notice of Deficiency or a Notice of Acceptance with recruitment instructions.

Step 3: Recruiting U.S. workers

After acceptance, the state workforce agency circulates the job order. The employer contacts former U.S. workers it employed in the occupation during the previous year (other than those dismissed for cause or who abandoned the job), notifies the union if there is a bargaining representative, posts the job at the worksite, and carries out any further recruitment DOL directs. It must hire qualified U.S. applicants referred or applying until 21 days before the date of need, and it submits a recruitment report describing the results.

If U.S. workers are hired, DOL certifies fewer H-2B positions. That is the program working as intended, not a denial.

Step 4: Certification and the I-129 petition

Once DOL certifies, the employer files Form I-129 with USCIS, with the certification, requesting H-2B classification. The petition may not be filed more than 120 days before the date of need. Petitions may name workers or, where the workers are outside the United States, request unnamed workers. Premium processing is available. Cap-subject workers are counted against the cap when USCIS receives the petition, so file promptly after certification.

Step 5: Visas, travel, and arrival

The workers complete the DS-160 and attend consular interviews. The H-2B is not a dual intent visa, so each worker must show an intent to return home. The employer reimburses visa and related fees in the first workweek and inbound travel and subsistence when the worker completes half of the employment period, or earlier if federal minimum wage law requires it. After the workers are admitted, the employer must notify DOL and DHS within two business days if a worker fails to report for five consecutive working days without consent. Our article on H-2B employer obligations covers the duties that run through the season.

A working calendar for an April 1 date of need

Counting backward from April 1 in a non-leap year:

Fall of the prior year: request the prevailing wage determination
January 1: the 90-day window for the ETA-9142B opens; January 16 is the last day at 75 days
February: respond to any deficiency notice, complete recruitment, file the recruitment report
After certification: file the I-129 promptly, since the cap fills on receipt
March: worker interviews and travel; U.S. applicants must be accepted until March 11, 21 days before the start date
April 1: work begins

Employers with other dates of need shift the same calendar. The constant is that every step depends on the one before, which is why our business immigration practice starts H-2B planning the previous fall.

If you are planning an H-2B season and want the filings sequenced against your date of need, 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-2B temporary worker petition page or schedule a consultation.