H-2A and H-2B Temporary Worker Visas: Policy and Related Issues

May 10, 2017 – May 11, 2023 R44849

H-2A and H-2B Temporary Worker Visas: Policy May 11, 2023
and Related Issues
Andorra Bruno
Certain foreign workers, sometimes referred to as guest workers, may be admitted to the
Specialist in Immigration
United States to perform temporary labor under two temporary worker visas: the H-2A
Policy
visa for agricultural workers and the H-2B visa for nonagricultural workers. The H-2A

visa is not subject to any numerical limitations, while the H-2B visa is subject to a
statutory annual cap of 66,000.

H-2A and H-2B workers fill jobs that do not require much formal education. H-2A workers perform seasonal or
temporary agricultural labor. They also engage in range herding and livestock production. The H-2A sections of
this report focus on workers in non-range occupations. H-2B workers perform temporary jobs in a variety of
fields including landscaping, meat and seafood processing, and construction.
The H-2A and H-2B programs are administered by the Department of Homeland Security (DHS) and the
Department of Labor (DOL). Statutory and regulatory provisions establish processes for bringing in workers
under the H-2A and H-2B programs that are intended to protect similarly employed U.S. workers. As an initial
step in the process, a prospective H-2A or H-2B employer must apply for DOL labor certification to ensure that
U.S. workers are not available for the jobs in question and that the hiring of foreign workers will not adversely
affect the wages and working conditions of U.S. workers. After receiving labor certification, the employer can
submit an application, known as a petition, to DHS to bring in foreign workers. If the petition is approved, a
foreign worker who is abroad can then go to a U.S. embassy or consulate to apply for an H-2A or H-2B
nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that he or she can
use to apply for admission to the United States at a port of entry. The final steps are different if the foreign worker
is already in the United States; in such a case, there is no visa application.
Over the years, a variety of legislative measures have been put forward concerning foreign temporary agricultural
and nonagricultural workers. These have included bills to establish new temporary worker visas for agricultural
and nonagricultural workers as well as proposals to change the existing H-2A and H-2B programs. In recent
Congresses, the latter proposals have been more common. H-2A-related measures have sought to revise H-2A
program requirements on temporary need, wages, U.S. worker recruitment, and housing, among other items.
Recent bills on the H-2B visa have focused largely on the annual cap.
The H-2A and H-2B programs—and guest worker programs broadly—strive both to be responsive to legitimate
employer needs for temporary labor and to provide adequate protections for U.S. and foreign temporary workers.
There is much debate, however, about how to strike the appropriate balance between these goals. Key policy
considerations for Congress include the labor market test to determine whether U.S. workers are available for the
positions, required wages, and enforcement. The issue of unauthorized workers also arises in connection with
guest worker programs.
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H-2A and H-2B Temporary Worker Visas: Policy and Related Issues

Introduction
The United States has a long history of importing foreign temporary workers, who are sometimes
referred to as guest workers. In the past, guest workers were used to address U.S. worker
shortages during times of war. Notably, the controversial Bracero program, which began during
World War II and lasted until 1964, brought several million Mexican agricultural workers into the
United States.
Today, the Immigration and Nationality Act (INA)1 provides for the temporary admission of
agricultural and nonagricultural workers to the United States through the H-2A and H-2B visa
programs, respectively. H-2A and H-2B workers fill jobs that do not require much formal
education. H-2A workers perform seasonal or temporary agricultural labor. They also engage in
range herding and livestock production. H-2B workers perform temporary jobs in a variety of
fields including landscaping, meat and seafood processing, and construction. The H-2A and H-2B
programs, which are subject to detailed recruitment and other requirements, seek to meet the
legitimate temporary labor needs of employers while providing protections to U.S. and foreign
workers.
The difficulty in balancing the needs of employers and workers in guest worker programs is
reflected in ongoing debates about such programs. Some view guest worker programs as helpful
to businesses with seasonal needs and “to our long-term economic health” and call for their
expansion and simplification.2 Others see these programs as “having numerous programmatic
flaws that undermine labor standards and leave migrant workers vulnerable to abuses.”3
This report covers the H-2A temporary agricultural worker program and the H-2B temporary
nonagricultural worker program. It explores the statutory and regulatory provisions that govern
each program, focusing in particular on the much-debated labor certification process. It discusses
past and present legislative efforts to reform the H-2A and H-2B programs and to create new
guest worker visas, and identifies and analyzes key policy considerations to help inform future
congressional action.
Overview of H-2A and H-2B Visas
The INA enumerates categories of aliens,4 known as nonimmigrants, who are admitted to the
United States for a temporary period of time and specific purpose. Nonimmigrant visa categories
are identified by letters and numbers, based on the sections of the INA that authorize them.
Among the major nonimmigrant visa categories is the “H” category for temporary workers. It

1 Act of June 27, 1952, ch. 477, codified, as amended, at 8 U.S.C. §1101 et seq. The INA is the basis of current
immigration law.
2 See, for example, Isai Chavez, “Guest Worker Programs: What Needs Fixing and Why,” E21/Manhattan Institute for
Policy Research, February 26, 2018, https://economics21.org/html/guest-worker-programs-what-needs-fixing-and-
why-2915.html.
3 See, for example, Daniel Costa, “Second-class workers: Assessing H-2 visa programs’ impact on workers,” Economic
Policy Institute, July 20, 2022, https://www.epi.org/publication/second-class-workers-assessing-h2-visa-programs-
impact-on-workers/.
4 An alien is defined in the INA as a person who is not a citizen or national of the United States. INA §101(a)(3); 8
U.S.C. §1101(a)(3).
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includes H-2A and H-2B visas for guest workers,5 as well as visas for specialty occupation
workers.6
The INA, as originally enacted in 1952, authorized an H-2 nonimmigrant visa category for
foreign agricultural and nonagricultural workers who were coming temporarily to the United
States to perform temporary services (other than those of an exceptional nature requiring
distinguished merit and ability) or labor. The 1986 Immigration Reform and Control Act (IRCA)7
amended the INA to subdivide the H-2 program into the current H-2A agricultural worker
program and H-2B nonagricultural worker program and to detail the admissions process for H-2A
workers. The H-2A and H-2B programs are administered by the U.S. Department of Homeland
Security’s (DHS’s) U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department
of Labor’s (DOL’s) Employment and Training Administration (ETA).
While there are many differences between the H-2A and H-2B programs, the process of bringing
in workers under either one entails the same basic steps (see Figure 1). Employers who want to
hire workers through either program must first apply to DOL for labor certification. After
receiving labor certification, a prospective H-2A or H-2B employer can submit an application,
known as a petition, to DHS to bring in foreign workers.
Figure 1. Bringing in H-2A and H-2B Workers

Source: CRS presentation of information from U.S. Department of Homeland Security, U.S. Citizenship and
Immigration Services.
If the petition is approved, foreign workers who are abroad can go to a U.S. embassy or consulate
to apply for an H-2A or H-2B nonimmigrant visa from the U.S. Department of State (DOS). As
part of the visa process, most applicants must be interviewed, unless the interview requirement is
waived.8 The INA authorizes consular officers to waive nonimmigrant visa interviews in certain
cases.9 It also authorizes the Secretary of State to waive visa interviews upon a determination that
such a waiver is “in the national interest of the United States” or is “necessary as a result of
unusual or emergent circumstances.”10 If the visa application is approved, the worker is issued a

5 INA §§101(a)(15)(H)(ii)(a), (b); 8 U.S.C. §§1101(a)(15)(H)(ii)(a), (b).
6 For a discussion of “H” visas for specialty occupation workers, see CRS Report R47159, Temporary Professional
Foreign Workers: Background, Trends, and Policy Issues.
7 P.L. 99-603, November 6, 1986.
8 The interview requirements and waiver provisions are enumerated in INA §222(h) (8 U.S.C. §1202(h)). These
provisions require interviews for nonimmigrant visa applicants between the ages of 14 and 79, but allow for waivers in
certain circumstances.
9 These include cases in which the consular officer has no indication that the applicant has not complied with U.S.
immigration law and regulations, the individual was previously issued a visa of the same type, the individual is
applying no more than 12 months after the expiration of the prior visa, and the individual is applying from within his or
her country of usual residence unless otherwise prescribed in regulations. INA §222(h)(1)(B); 8 U.S.C. §1202(h)(1)(B).
10 INA §222(h)(1)(C); 8 U.S.C. §1202(h)(1)(C).
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visa that he or she can use to apply for admission to the United States at a port of entry. If
admitted, the H-2A or H-2B worker can commence employment on the work start date.
The last part of the process is different if the foreign worker who the prospective H-2A or H-2B
employer wants to employ is already in the United States. (There is no visa application step if the
beneficiary of the petition is in the United States.) In such a case, the employer requests as part of
the petition that the worker be granted an extension of stay (if the worker holds the relevant H-2A
or H-2B status) or a change of status/extension of stay (if the worker is in another nonimmigrant
status). If the petition is approved, the H-2A or H-2B worker can commence employment on the
work start date.11
Temporary Visa Processing Changes Since 2020
In March 2020, in response to the COVID-19 pandemic, DOS suspended routine visa services at all U.S. embassies
and consulates.12 On March 23, 2020, DHS announced that it had reached agreement with Mexico and Canada to
“limit all non-essential travel across borders” in an effort to slow further spread of COVID-19.13 Among the
immigration-related issues raised by these actions was the possible impact on the admission to the United States
of H-2A temporary agricultural workers and H-2B temporary nonagricultural workers (sometimes referred to
col ectively as H-2 workers).
In an announcement on March 26, 2020, DOS stated that “the H-2 program is essential to the economy and food
security of the United States and is a national security priority” and that the department “intend[s] to continue
processing H-2 cases as much as possible, as permitted by post resources and local government restrictions.” It
further explained that the DOS Secretary, in consultation with DHS, had “authorized consular officers to expand
the categories of H-2 visa applicants whose applications can be adjudicated without an in-person interview.”
According to the DOS announcement, “We anticipate the vast majority of otherwise qualified H-2 applicants wil
now be adjudicated without an interview.”14 (Temporary rules on H-2A and H-2B visas related to the COVID-19
public health emergency15 are discussed in the “DHS Regulations on the H-2A Visa” and the “DHS Regulations on
the H-2B Visa” sections below.)
DOS subsequently provided for the extension of these interview waivers. As of the cover date of this report,
DOS consular officers remain authorized to waive in-person interviews for H-2 visa applicants through December
31, 2023. According to the announcement of this latest extension:
The Department of State recognizes the positive impact of travel to the United States by foreign student and
temporary work visa holders on the U.S. economy and is committed to facilitating nonimmigrant travel and
further reducing visa wait times.16
Temporary Labor Certification
DOL’s ETA administers the labor certification process under the H-2A and H-2B programs.
Under both programs, employers submit applications to DOL in which they request certification

11 The U.S. Department of Homeland Security (DHS) has established some temporary exceptions to this requirement
that the H-2A or H-2B petition be approved before employment can commence, as discussed more fully below.
12 U.S. Department of State (DOS), Bureau of Consular Affairs, “Suspension of Routine Visa Services,” March 20,
2020, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html.
13DHS, “Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus,” March 23, 2020,
https://www.dhs.gov/news/2020/03/23/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus.
14 DOS, Bureau of Consular Affairs, “Important Announcement on H2 Visas,” March 26, 2020, https://travel.state.gov/
content/travel/en/News/visas-news/important-announcement-on-h2-visas.html (hereinafter cited as “DOS, “Important
Announcement on H2 Visas””).
15 The emergency expired at the end of the day on May 11, 2023. U.S. Department of Health and Human Services, Fact
Sheet: End of the COVID-19 Public Health Emergency, May 9, 2023, https://www.hhs.gov/about/news/2023/05/09/
fact-sheet-end-of-the-covid-19-public-health-emergency.html.
16 DOS, “Extension of Interview Waivers for Certain Nonimmigrant Visa Applicants,” December 23, 2022,
https://www.state.gov/extension-of-interview-waivers-for-certain-nonimmigrant-visa-applicants/.
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for a particular number of positions. (See Appendix A for labor certification data for the top
states.)
INA provisions on the admission of H-2A workers state that an H-2A petition cannot be approved
unless the petitioner has applied to DOL for certification that
(1) there are not sufficient workers who are able, willing, and qualified, and who will be
available at the time and at place needed, to perform the labor or services involved in the
petition, and
(2) the employment of the alien in such labor or services will not adversely affect the wages
and working conditions of workers in the United States similarly employed.17
There is no equivalent labor certification requirement in statute for the H-2B visa. The INA,
however, does contain some related language. For example, it defines an H-2B alien, in relevant
part, as an alien “who is coming temporarily to the United States to perform other temporary
service or labor if unemployed persons capable of performing such service or labor cannot be
found in this country.”18 The H-2B labor certification requirement instead appears in DHS
regulations, which state
The petitioner may not file an H-2B petition unless the United States petitioner has applied
for a labor certification with the Secretary of Labor ... and has obtained a favorable labor
certification determination.19
The H-2A and H-2B labor certification requirements are intended to provide job, wage, and
working conditions protections to U.S. workers. They are implemented in both programs through
a multifaceted labor certification process that requires prospective H-2A and H-2B employers to
conduct recruitment for U.S. workers and offer minimum levels of wages and benefits that vary
by program.
H-2A Agricultural Worker Visa
The H-2A visa allows for the temporary admission of foreign workers to the United States to
perform agricultural labor or services of a seasonal or temporary nature. It is governed by
provisions in the INA and regulations issued by DHS and DOL. H-2A workers may perform
agricultural work, as defined by DOL in regulations and including “agricultural labor” and
“agriculture” as these terms are defined in specified laws.20 H-2A workers may also perform other
specified agricultural activities, including the pressing of apples for cider.21
Visa Issuances
The H-2A visa program is not subject to a statutory numerical limit and has grown significantly
over the last 30 years. One way to measure the H-2A program’s growth is to consider changes in
the number of H-2A visas issued annually by DOS. The visa application and issuance process
occurs after DOL has granted labor certification and DHS has approved the visa petition (see
Figure 1). As illustrated in Figure 2, the number of H-2A visas issued has increased relatively

17 INA §218(a)(1)(A), (B); 8 U.S.C. §1188(a)(1)(A), (B).
18 INA §101(a)(15)(H)(ii)(b); 8 U.S.C. §1101(a)(15)(H)(ii)(b).
19 8 C.F.R. §214.2(h)(6)(iii)(C).
20 The laws are enumerated in the INA definition of an H-2A worker, INA §101(a)(15)(H)(ii)(a) (8 U.S.C.
§1101(a)(15)(H)(ii)(a)).
21 The pressing of apples was added to the INA definition of an H-2A worker by the FY2006 DHS Appropriations Act
(P.L. 109-90, §536).
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sharply in recent years, with visa issuances more than quadrupling from less than 70,000 in
FY2012 to more than 290,000 in FY2022.22
Annual visa issuances provide an approximation of the number of aliens with H-2A status that
enter the United States in a given year. However, they are not a precise measure. Among the
reasons for this are that not all aliens who are issued H-2A visas necessarily use them to enter the
United States, an alien may be issued a visa in one year and use it to enter the United States in the
next year, and an alien with an H-2A visa may be denied admission at a U.S. port of entry.
Figure 2. H-2A Visas Issued, FY1992-FY2022

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Notes: See Appendix C for underlying data.
With the recent growth in H-2A visa issuances, questions have arisen about the size of the H-2A
visa program relative to the larger agricultural workforce in the United States. Estimates vary
depending on how the agricultural workforce is defined and the factors that are taken into account
in making the comparison. According to an analysis by Rural Migration News, a publication of
the University of California at Davis, H-2A workers filled “about 125,000 year-round equivalent
jobs, 11 percent of the 1.1 million FTE [full-time-equivalent] jobs in U.S. crop agriculture” in
FY2021.23 One basic limitation of using annual visa issuance data as a measure of the H-2A
workforce is that these data exclude some H-2A workers, such as those who enter the United
States on a visa in one fiscal year and then extend their stay into the next fiscal year to perform
new employment; such workers would not be included in visa issuance data for the second year.
H-2A Statutory Provisions
The H-2A visa is subject to a set of conditions and rules described in INA §218.24 As illustrated in
Figure 1, prospective H-2A employers must first apply to DOL for labor certification. To approve
a labor certification application, DOL must determine that qualified U.S. workers are not
available to fill the job openings and that the employment of foreign workers will not adversely
affect similarly employed U.S. workers (e.g., by lowering wages).

22 See Appendix C for annual H-2A visa issuance data.
23 Rural Migration News, Blog 255, December 2021, https://migrationfiles.ucdavis.edu/uploads/rmn/blog/2021/12/
Rural%20Migration%20News%20Blog%20255.pdf.
24 8 U.S.C. §1188.
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U.S. worker recruitment is a key component of the H-2A labor certification process. As required
by the INA, the prospective H-2A employer’s job offer is circulated through an interstate
employment system to recruit qualified U.S. workers. The employer also may be required to
engage in additional recruitment in a “multi-state region of traditional or expected labor
supply.”25 INA provisions on the H-2A visa include a fifty percent rule, under which employers
are required to hire any qualified U.S. worker who applies for a position during the first half of
the work contract under which the H-2A workers who are in the job are employed.26
Under the INA provisions, DOL cannot require a prospective H-2A employer to submit a labor
certification application more than 45 days before the employer’s date of need for workers. And if
the employer has complied with the recruitment and other certification requirements and eligible
U.S. workers have not been found to fill the job openings, DOL must issue a labor certification no
later than 30 days before the employer’s date of need.27 Among the other statutory labor
certification requirements, employers must provide workers with housing in accordance with
regulations.
The INA permits the filing of H-2A labor certification applications and petitions by agricultural
associations.28 In addition, it authorizes DOL to take actions, such as imposing penalties, to
ensure employer compliance with the terms and conditions of H-2A employment.
Separate from the INA, H-2A workers are statutorily eligible for legal assistance by a Legal
Services Corporation-funded program on matters arising under workers’ specific employment
contracts relating to wages, housing, transportation, and other employment rights.29
H-2A Regulations
Regulations issued by DHS and DOL implement the INA provisions on the H-2A visa (see
Appendix D for additional information on selected H-2A regulations).
DHS Regulations on the H-2A Visa
DHS regulations govern the admission of H-2A workers to the United States.30 A 2008 DHS rule
on the H-2A visa, which remains largely in effect, described its purpose as being “to provide
agricultural employers with an orderly and timely flow of legal workers, thereby decreasing their
reliance on unauthorized workers, while protecting the rights of laborers.”31

25 INA §218(b)(4); 8 U.S.C. §1188(b)(4).
26 This rule was originally made effective by statute for three years beginning in 1987 but remains in place by
regulation.
27 The U.S. Department of Labor (DOL) publishes a quarterly report on the H-2A program that includes statistics on
application processing. According to the report for the fourth quarter of FY2022 (H-2A Temporary Agricultural
Program - Selected Statistics, Fiscal Year (FY) 2022), which includes FY2022 full-year data, DOL processed 97.6% of
H-2A applications that were complete in a timely fashion (that is, it issued a final determination 30 days before the
work start date) in FY2022. The quarterly reports are available on Employment and Training Administration’s (ETA’s)
Office of Foreign Labor Certification (OFLC) Performance Data page, https://www.dol.gov/agencies/eta/foreign-labor/
performance.
28 For purposes of the H-2A program, an agricultural association is a nonprofit or cooperative association of farmers,
growers, or ranchers that performs certain functions, such as recruiting or transporting workers.
29 45 CFR §1626.11. The underlying statutory provision is P.L. 99-603, §305.
30 8 C.F.R. §214.2(h).
31 DHS, “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 Federal Register 76891, December 18, 2008.
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Under DHS regulations, petitioning H-2A employers must establish that the employment for
which they are seeking workers is of a temporary or seasonal nature. In general, the regulations
consider work to be of a temporary nature when the employer’s need for the worker will last no
longer than one year.
DHS regulations limit participation in the H-2A program to nationals of countries designated
annually by DHS, with the concurrence of DOS.32 The regulations also prohibit payments by
prospective H-2A workers to employers, recruiters, or other employment service providers where
the payments are a condition of obtaining H-2A employment.
DHS regulations also address an H-2A worker’s authorized period of stay. They specify that an
H-2A worker can be admitted to the United States up to one week before the start of the approved
H-2A petition period in order to travel to the work site and may remain in the country for 30 days
after the petition expires in order to prepare to depart or to seek an extension of stay based on a
subsequent job offer. An employer can apply to extend an H-2A worker’s stay in increments of up
to one year, but an alien’s total period of stay as an H-2A worker may not exceed three
consecutive years. An alien who has spent three years in the United States in H-2A status may not
seek an extension of his or her stay or be readmitted to the United States as an H-2A worker until
he or she has been outside the country for three months.
Temporary Regulatory Changes
In response to the COVID-19 emergency, DHS issued a final rule on April 20, 2020, making
temporary changes (until August 18, 2020) to some of its H-2A regulatory requirements.33
According to the rule’s preamble, “DHS is taking steps to ensure that the agricultural sector has
greater certainty and flexibility to minimize gaps in their H-2A workflow” in view of COVID-19-
related travel restrictions, visa processing limitations, and possible H-2A worker unavailability
due to illness.34 The rule enabled H-2A workers in the United States who sought to undertake new
H-2A employment to begin that work after the employer filed a petition, accompanied by a valid
labor certification, requesting an extension of stay for the worker (but before the petition was
approved). In general, absent this change, the worker could not have started the new employment
until DHS approved the petition.35 Under the rule, the H-2A worker could start the new
employment on the work start date in the filed petition or the acknowledged petition receipt date,

32 DHS published a notice, effective on November 10, 2022, for one year, that identified 86 countries whose nationals
are eligible to participate in the H-2A program. See DHS, “Identification of Foreign Countries Whose Nationals Are
Eligible To Participate in the H–2A and H–2B Nonimmigrant Worker Programs,” 87 Federal Register 67930,
November 10, 2022. The notice discusses the factors considered in designating eligible countries.
33 DHS, “Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due to the COVID–19 National
Emergency,” 85 Federal Register 21739, April 20, 2020 (hereinafter cited as “April 2020 DHS H-2A temporary rule”).
34 Ibid., pp. 21741-21742.
35 8 C.F.R. 214.2(h)(2)(i)(D).
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whichever was later, and work for up to 45 days while the petition remained pending.36 DHS
issued subsequent rules that extended this change until June 16, 2021.37
As noted, an H-2A worker is limited to a three-year maximum period of stay. DHS’s April 2020
rule created a temporary exception to this limitation. Under this exception, an H-2A petition
seeking an extension of stay, accompanied by a valid labor certification, could be approved even
if any of the workers requested in the petition either had already been in the United States for
three years or would exceed the three-year limit if the extension were approved. This exception
was in effect until August 18, 2020. Unlike the change described above, it was not extended.
These COVID-19-related rules did not modify or waive related DOL regulations. As stated in the
preamble to the April 2020 rule, “This final rule proposes no changes to DOL’s regulations or to
the TLC [temporary labor certification] process, which the employer must undergo to recruit U.S.
workers prior to the filing of an H-2A petition with USCIS.”38
DOL Regulations on H-2A Employment
DOL regulations on the H-2A visa include ETA regulations concerning H-2A labor certification.39
ETA regulations implement the requirement that before an employer can petition for H-2A
workers, the employer must apply for certification that U.S. workers are not available to fill the
positions and that the employment of foreign workers will not adversely affect the wages or
working conditions of U.S. workers.
ETA regulations detail the process for prospective H-2A employers to recruit U.S. workers. The
employer must submit a job order containing the terms and conditions of employment to the
DOL-funded state workforce agency (SWA)40 serving the area of intended employment before the
employer can submit a labor certification application. The job order becomes the basis for
recruiting U.S. workers to fill the employer’s openings through an intrastate clearance system.
Once the employer submits the labor certification application and job order to ETA and ETA
determines that they are complete and comply with applicable requirements, the agency
authorizes access to the interstate clearance system and posts the job order on its electronic job
registry.41 ETA also will direct the employer to conduct recruitment by other means, including by
contacting former U.S. workers.
H-2A employers must offer and provide required wages and benefits to H-2A workers and
workers in corresponding employment. Corresponding employment for purposes of the H-2A

36 There is a similar permanent regulatory provision that predates this rule that allows an H-2A worker to begin work
with a new petitioning employer before the petition is approved if the employer participates in the E-Verify
employment eligibility verification system. Unlike the provision in the temporary final rule that allows the new
employment to begin only on the petition work start date and authorizes such employment for up to 45 days, the
provision for E-Verify employers enables H-2A workers to begin the new employment immediately upon DHS receipt
of the new H-2A petition and authorizes employment for up to 120 days. 8 C.F.R. §274a.12(b)(21). See April 2020
DHS H-2A temporary rule, p. 21742. For information from DHS on E-Verify, see https://www.e-verify.gov/about-e-
verify.
37 DHS, “Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due to the COVID–19 National
Emergency: Partial Extension of Certain Flexibilities,” 85 Federal Register 51304, August 20, 2020; and DHS,
“Temporary Changes to Requirements Affecting H–2A Nonimmigrants Due to the COVID–19 National Emergency:
Extension of Certain Flexibilities,” 85 Federal Register 82291, December 18, 2020.
38 April 2020 DHS temporary H-2A rule, p. 21742.
39 20 C.F.R. Part 655, Subpart B.
40 A state workforce agency is a state government agency that receives funds pursuant to the Wagner-Peyser Act (29
U.S.C. §49 et seq.) to administer the state’s public labor exchange activities.
41 The registry is available at https://seasonaljobs.dol.gov/jobs.
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program is the employment of non-H-2A workers by an employer who has an approved H-2A
labor certification in any work included in the job order or in any agricultural work performed by
the H-2A workers. H-2A employers are required to pay workers the highest of several wage rates.
Employers must provide a three-fourths guarantee; that is, they must guarantee to offer workers
employment for at least three-fourths of the contract period. They must also provide workers with
housing, transportation,42 and other benefits, including workers’ compensation insurance.43
ETA regulations address circumstances in which, due to natural or manmade catastrophic events
beyond the employer’s control, an H-2A employer no longer needs the services of a worker. In
such a case, the employer may terminate the work contract with DOL approval. However, the
employer remains obligated to meet certain responsibilities to the worker.44
ETA, which is responsible for enforcing H-2A employer compliance with obligations related to
the labor certification process, may conduct audits of approved labor certification applications.
Under certain circumstances, it may revoke an approved certification or debar an employer from
receiving future certifications.
DOL regulations on the H-2A visa also include regulations by the Wage and Hour Division
(WHD) concerning enforcement of contractual obligations under the H-2A program.45 WHD is
responsible for enforcing H-2A employer compliance with obligations to H-2A workers and
workers in corresponding employment, such as the requirement to offer employment to U.S.
workers. The agency is responsible for carrying out investigations, inspections, and law
enforcement functions and in appropriate instances, imposing penalties or taking other actions,
including debarment.
Range Herding and Livestock Regulations
ETA issued regulations in 2015 on range herding and livestock production that established special
standards and procedures for employers applying for labor certification to hire H-2A workers to
perform this type of work. These standards and procedures encompass various aspects of the
labor certification process, including job order and labor certification application filing, U.S.
worker recruitment, wage requirements, and housing standards.46

42 The transportation requirement covers the H-2A worker’s transportation to and from the place of employment at the
beginning and end of the work contract period, respectively, and transportation between the worker’s living quarters
and the worksite.
43 H-2A workers, like nonimmigrants generally, are not eligible for federally funded public assistance, with the
exception of certain emergency services. See CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview. However, nonimmigrants are eligible for Affordable Care Act (ACA) Health Insurance
Exchanges. See CRS Report R47351, Immigrants’ Access to Health Care.
44 These responsibilities include fulfilling a three-fourths guarantee for the period between the contract start date and
the termination date. 20 C.F.R. §655.122(o). For information about application of these DOL H-2A “contract
impossibility” regulations and similar DOL H-2B regulations during the COVID-19 pandemic, see DOL, ETA, OFLC,
“COVID-19, Frequently Asked Questions, Round 1,” March 20, 2020, p. 7, https://www.foreignlaborcert.doleta.gov/
pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf.
45 29 C.F.R. Part 501.
46 DOL, ETA, “Temporary Agricultural Employment of H–2A Foreign Workers in the Herding or Production of
Livestock on the Range in the United States,” 80 Federal Register 62958, October 16, 2015 (hereinafter cited as “DOL
H-2A herding rule”). Also see DOL, ETA, OFLC, “2015 Final Rule, Range Herding or Production of Livestock in the
United States,” factsheet, https://www.foreignlaborcert.doleta.gov/herd_pdf/herder_factsheet.pdf. These DOL
regulations are codified at 20 C.F.R. §§655.200-655.235.
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H-2B Nonagricultural Worker Visa
The H-2B visa provides for the temporary admission of foreign workers to the United States to
perform temporary nonagricultural service or labor, if unemployed U.S. workers cannot be found.
Foreign medical graduates coming to perform medical services are explicitly excluded.
H-2B workers are not limited to a particular set of occupations. Over the years, the H-2B visa has
been used to bring in workers to perform a variety of jobs. According to DOL labor certification
data, the top H-2B occupation in recent years in terms of the number of positions certified has
been landscaping and groundskeeping worker. Other top occupations include amusement and
recreation attendant, forest and conservation worker, maid and housekeeping cleaner, and meat,
poultry, and fish cutter and trimmer (see Appendix B for data on H-2B labor certifications by
occupation).
Visa Issuances
Figure 3 shows H-2B visa issuance data for FY1992 through FY2022.47 Unlike the uncapped H-
2A visa, the H-2B visa is subject to a statutory annual numerical limit of 66,000. For several years
(FY2005-FY2007, FY2016), a provision was in effect that exempted certain returning H-2B
workers from being counted against the cap. During one of these years (FY2007), when demand
for H-2B workers was high, H-2B visa issuances topped 129,000, the highest level in the
program’s history and almost twice the statutory cap. The number of H-2B visas issued reached a
recent low point in FY2009 during the Great Recession. FY2009 was the first year since FY2002
that H-2B visa issuances fell below the 66,000 cap. As shown in Figure 3, H-2B visa issuances
have followed a generally upward trend since then. For each year since FY2017, Congress has
authorized DHS to make additional H-2B visas available (beyond the cap) subject to certain
constraints. (For further information about the special H-2B cap provisions, see the “Enacted
Provisions” section below.)
As illustrated in Figure 3, there were several years that H-2B visa issuances exceeded the 66,000
cap when no special H-2B cap provisions were in effect. It is not necessarily clear in such cases
whether the H-2B cap was technically exceeded (and if so, by how much) in light of the cap
implementation process and other factors (see the “Numerical Limits” section below).

47 There is no precise measure available of the number of aliens with H-2B status that enter the United States in any
given year. Visa data provide an approximation but are subject to limitations, including that not all aliens who are
issued visas necessarily use them to enter the United States.
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Figure 3. H-2B Visas Issued, FY1992-FY2022

Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
Notes: See Appendix C for underlying data. Special cap-related provisions were in effect for FY2005-FY2007,
FY2016-FY2019, and FY2021-FY2022.
H-2B Statutory Provisions
The INA does not include a section detailing the conditions and rules applicable to the admission
of H-2B workers as it does for H-2A workers. It does, however, place some specific requirements
on H-2B employers. It requires an employer who dismisses an H-2B worker before the end of his
or her period of authorized admission to pay for the worker’s return transportation abroad.48 It
also directs DHS to impose a fraud prevention and detection fee on H-2B employers.49 The INA
further authorizes DHS to enforce the conditions of an H-2B petition and allows DHS to delegate
this authority to DOL, by agreement.50 (DHS transferred this enforcement authority to DOL,
effective January 18, 2009.51)
The INA also imposes the aforementioned statutory numerical limit on the H-2B visa, specifying
that the total number of aliens who may be issued H-2B visas or otherwise provided H-2B status
during a fiscal year may not exceed 66,000. It further specifies that no more than half this total
(33,000) may be allocated during the first half of a fiscal year.52 A statutory provision separate
from the INA establishes an H-2B cap-related exception. Enacted as part of the FY2005
Department of Defense Appropriations Act, this provision makes the cap inapplicable on a

48 INA §214(c)(5); 8 U.S.C. §1184(c)(5).
49 INA §214(c)(13); 8 U.S.C. §1184(c)(13). H-2B fraud prevention and detection fees are deposited into the Fraud
Prevention and Detection Account, which was established in the general fund of the Treasury by INA §286(v) (8
U.S.C. §1356(v)). This account supports activities related to preventing and detecting fraud in the delivery of
immigration benefits.
50 INA §214(c)(14)(A), (B); 8 U.S.C. §1184(c)(14)(A), (B).
51 See DOL, ETA and Wage and Hour Division (WHD), “Labor Certification Process and Enforcement for Temporary
Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and
Other Technical Changes,” 73 Federal Register 78020, 78046, December 19, 2008; DHS and DOL, ETA and WHD,
“Temporary Non-Agricultural Employment of H–2B Aliens in the United States,” 80 Federal Register 24041, 24131,
April 29, 2015.
52 INA §§214(g)(1)(B), (g)(10); 8 U.S.C. §§1184(g)(1)(B), (g)(10).
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permanent basis to an H-2B worker employed “as a fish roe processor, a fish roe technician, or a
supervisor of fish roe processing.”53
Temporary H-2B cap-related and other provisions have also been regularly enacted in recent
years. For FY2023, as in past years, language in appropriations legislation provides for the
issuance of H-2B visas beyond the statutory cap under certain conditions. Other appropriations
provisions address various DOL H-2B regulations. For FY2023, as in past years, these provisions
define temporary need and the prevailing wage for H-2B purposes, prohibit the use of funds to
enact certain regulatory provisions, and allow for the staggered entry of certain H-2B workers.
(These recent, temporary enactments are discussed in the “Enacted Provisions” section below.)
In addition, the FY2008 Consolidated Appropriations Act makes H-2B forestry workers eligible
on a permanent basis for the same Legal Services Corporation-funded legal assistance available
to H-2A workers. This legal assistance may be provided to H-2B forestry workers on matters
relating to wages, housing, transportation, and other employment rights arising under workers’
specific employment contracts.54
H-2B Regulations
Regulations issued by DHS and DOL implement the INA provisions on the H-2B visa (see
Appendix D for additional information on selected H-2B regulations).
DHS Regulations on the H-2B Visa
DHS regulations govern the admission of H-2B workers to the United States.55 They define
temporary work for purposes of the H-2B visa. For work to qualify as temporary, the employer
must establish that his or her need for the worker will end in the “near, definable future.”
Additionally, the employer’s need for the duties to be performed by the worker must be a one-
time occurrence, a seasonal need, a peakload need, or an intermittent need.56 The employer’s need
must generally be for a period of one year or less, but, in the case of a one-time occurrence, could
last up to three years.
DHS’s H-2B regulations limit participation in the H-2B program to nationals of countries
designated annually by DHS, with the concurrence of DOS.57 These regulations also prohibit
payments by prospective H-2B workers to employers, recruiters, or other employment service
providers where the payments are a condition of obtaining H-2B employment.
Under DHS regulations, an H-2B worker can be admitted to the United States up to 10 days
before the validity period of the H-2B petition and may remain in the country for 10 days after the
petition expires. An employer can apply to extend an H-2B worker’s stay in increments of up to
one year, but an alien’s total period of stay as an H-2B worker may not exceed three consecutive
years.58 An H-2B alien who has spent three years in the United States may not seek an extension

53 P.L. 108-287, §14006.
54 P.L. 110-161, Division B, Title V, §540; 45 C.F.R. §1626.11.
55 8 C.F.R. §214.2(h).
56 For definitions of these types of need, see 8 C.F.R. §214.2(h)(6)(ii)(B).
57 DHS published a notice, effective on November 10, 2022, for one year, that identified 87 countries whose nationals
are eligible to participate in the H-2B program. See DHS, “Identification of Foreign Countries Whose Nationals Are
Eligible To Participate in the H–2A and H–2B Nonimmigrant Worker Programs,” 87 Federal Register 67930,
November 10, 2022. The notice discusses the factors considered in designating eligible countries.
58 Included in this three-year period is any time an H-2B alien spent in the United States under the “H” (temporary
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of stay or be readmitted to the United States as an H-2B worker until he or she has been outside
the country for three months.
As noted above in the discussion of the H-2B statutory provisions, DHS has transferred H-2B
enforcement authority to DOL. In accordance with this transfer, DHS regulations provide that
The Secretary of Labor may investigate employers to enforce compliance with the
conditions of a petition and Department of Labor-approved temporary labor certification
to admit or otherwise provide status to an H-2B worker.59
Temporary Regulatory Changes
On May 14, 2020, DHS issued a final rule making temporary changes to some of its H-2B
regulatory requirements in response to the COVID-19 public health emergency. This rule
mirrored the H-2A rule issued in April 2020 and similarly provided a 120-day filing period for
requesting its flexibilities (until September 11, 2020). It, though, did not apply to H-2B workers
generally. Instead, it was limited to workers who performed temporary labor “essential to the U.S.
food supply chain.”60 The preamble to the H-2B rule stated that “DHS is taking steps to ensure
that employers who have needs for temporary nonagricultural workers who provide stability to
the nation’s food supply chain have greater certainty and flexibility to minimize gaps in the flow
of H-2B workers.”61
The rule enabled such an H-2B worker who was in the United States and sought to undertake new
H-2B employment to begin that work after the employer filed a petition requesting an extension
of stay for the worker (but before the petition was approved). The petition had to be accompanied
by a valid labor certification and an attestation that the worker would be performing work
essential to the U.S. food supply chain. In general, absent this change the worker could not have
started the new employment until DHS approved the petition.62 Under the rule, the H-2B worker
was authorized to start the new employment on the work start date in the filed petition or the
USCIS-acknowledged petition receipt date, whichever was later, and work for up to 60 days
while the petition remained pending.
DHS has reinstituted this flexibility and expanded it to cover H-2B workers generally in a series
of temporary rules issued in consultation with DOL since May 2021 (these same temporary rules
made additional H-2B visas available, as discussed below).63 Under the most recent of these rules,

worker) or “L” (temporary intracompany transferee) visa categories. For information about these visa categories, see
CRS Report R45938, Nonimmigrant and Immigrant Visa Categories: Data Brief.
59 8 C.F.R. §214.2(h)(6)(ix).
60 According to the supplementary information to the rule, this work includes, but is not limited to, “work related to the
processing, manufacturing, and packaging of human and animal food; transporting human and animal food from farms,
or manufacturing or processing plants, to distributors and end sellers; and the selling of human and animal food through
a variety of sellers or retail establishments, including restaurants.” DHS, “Temporary Changes to Requirements
Affecting H–2B Nonimmigrants Due to the COVID–19 National Emergency,” 85 Federal Register 28843, 28846, May
14, 2020.
61 Ibid., p. 28846.
62 8 C.F.R. 214.2(h)(2)(i)(D).
63 DHS and DOL, ETA, “Exercise of Time-Limited Authority To Increase the Fiscal Year 2021 Numerical Limitation
for the H–2B Temporary Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To
Change Employers,” 86 Federal Register 28198, May 25, 2021; DHS and DOL, ETA, “Exercise of Time-Limited
Authority To Increase the Fiscal Year 2022 Numerical Limitation for the H–2B Temporary Nonagricultural Worker
Program and Portability Flexibility for H–2B Workers Seeking To Change Employers,” 87 Federal Register 4722,
January 28, 2022; DHS and DOL, ETA, “Exercise of Time-Limited Authority To Increase the Numerical Limitation
for Second Half of FY 2022 for the H–2B Temporary Nonagricultural Worker Program and Portability Flexibility for
H–2B Workers Seeking To Change Employers,” 87 Federal Register 30334, May 18, 2022.
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issued in December 2022, these petition-related provisions are available to H-2B petitioners and
H-2B workers until January 24, 2024.64
As noted, an H-2B worker is limited to a three-year maximum period of stay. The May 2020 rule
created a temporary exception to this limitation. Under the exception, an H-2B petition seeking an
extension of stay for H-2B workers essential to the U.S. food supply chain, which was
accompanied by a valid labor certification, could be approved even if any of the workers
requested in the petition either had already been in the United States for three years or would
exceed the three-year limit if the extension were approved. This portion of the rule has not been
reinstituted.
DHS/DOL Regulations on H-2B Employment
The 2015 interim final rule on H-2B employment, which includes regulations on H-2B labor
certification and enforcement, was issued jointly by DHS and DOL, rather than by DOL alone.
This joint issuance came in response to litigation challenging DOL’s rulemaking authority with
respect to the H-2B program. As noted, the INA does not assign DOL an explicit role in the H-2B
visa program. DHS and DOL addressed the joint issuance in the rule’s preamble:
To ensure that there can be no question about the authority for and validity of the
regulations in this area, DHS and DOL (the Departments), together, are issuing this interim
final rule. By proceeding together, the Departments affirm that this rule is fully consistent
with the INA and implementing DHS regulations and is vital to DHS’s ability to faithfully
implement the statutory labor protections attendant to the program.65
The regulations on H-2B labor certification establish a two-part labor certification process with
distinct registration and application phases.66 In the registration phase, DOL must assess an
employer’s temporary need for H-2B workers. A prospective H-2B employer is required to
submit an H-2B registration 120 days to 150 days before the initial date of need for workers and
must receive registration approval before filing a labor certification application. A registration
approval can be valid for up to three years. (As of the cover date of this report, the registration
process is not operational; DOL continues to make determinations about temporary need when it
processes labor certification applications.)
Regarding the employer’s period of need for workers, the regulations provide that except in cases
of a one-time occurrence, labor certification applications with a period of employer need of more
than nine months will generally be denied. According to the preamble to the 2015 interim final
rule, “Recurring temporary needs of more than 9 months are, as a practical matter, permanent
positions for which H–2B labor certification is not appropriate.” The preamble also states that
“DOL’s temporary need period [of nine months] falls comfortably within the parameters of the
general ‘one year or less’ limitation contained in the DHS regulations.”67 The regulations also

64 DHS and DOL, ETA, “Exercise of Time-Limited Authority To Increase the Numerical Limitation for FY 2023 for
the H–2B Temporary Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To
Change Employers,” 87 Federal Register 76816, December 15, 2022.
65 DHS and DOL, ETA and WHD, “Temporary Non-Agricultural Employment of H–2B Aliens in the United States,”
80 Federal Register 24041, 24045, April 29, 2015 (hereinafter cited as “2015 DHS/DOL interim final H-2B rule”).
66 20 C.F.R. Part 655, Subpart A.
67 2015 DHS/DOL interim final H-2B rule, p. 24056. Language included in annual DOL appropriations acts since
FY2016, however, specifies that the definition of temporary need for H-2B purposes will be that in DHS regulations
(i.e., one year or less) (see the “Enacted Provisions” section for statutory citations).
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limit participation of job contractors in the H-2B program to cases in which they can demonstrate
their own temporary need for workers, not that of their employer-clients.68
During the labor certification application phase, as detailed in the regulations, ETA determines
whether U.S. workers are available to fill the labor needs of the employer. Between 75 and 90
days before the employer’s date of need for workers, a prospective H-2B employer must
concurrently submit a labor certification application to ETA and a job order to the SWA serving
the area of intended employment. If ETA determines that the submissions are complete and
comply with applicable requirements, it will direct the SWA to place the job order into intrastate
and interstate clearance and will post the job order on its electronic job registry to recruit U.S.
workers.69 ETA will also direct the employer to conduct recruitment of U.S. workers, including by
contacting former U.S. workers. The employer must continue to accept referrals and applications
of U.S. applicants until 21 days before the date of need.
A prospective H-2B employer must indicate the starting and ending dates of the period of need
for H-2B workers. If within a season an employer has more than one date of need for workers to
perform the same job, the employer must file a separate labor certification application for each
date of need. The employer is not allowed to stagger the entry of H-2B workers based on one date
of need. There is an exception to this staggered entry prohibition that permits an employer in the
seafood industry with an approved H-2B petition to bring in the H-2B workers under that petition
any time during the 120 days beginning on the employer’s starting date of need. In order to bring
in the workers between day 90 and day 120, though, the employer must conduct additional U.S.
worker recruitment.70
The regulations further require that employers offer and provide required wages and benefits to
H-2B workers and workers engaged in corresponding employment. Corresponding employment
for purposes of the H-2B program is the employment of non-H-2B workers by an employer that
has an approved H-2B labor certification when those workers are performing either substantially
the same work included in the job order or substantially the same work performed by the H-2B
workers, with exceptions for certain incumbent workers.71 H-2B employers are required to pay
workers the highest of the prevailing wage rate or the federal, state, or local minimum wage.72
They must offer a three-fourths guarantee (similar to that under the H-2A program) that ensures
payment of wages for at least three-fourths of the contract period.73 Among other benefits, they

68 This restriction reflects a concern that job contractors often have an ongoing, permanent need for workers rather than
a temporary need, as statutorily required for the H-2B visa.
69 The registry is available at https://seasonaljobs.dol.gov/jobs.
70 This staggered entry provision has also been included in annual DOL appropriations acts since FY2015 (see the
“Enacted Provisions” section for statutory citations).
71 Language included in annual DOL appropriations acts since FY2016 prohibits the use of funds to enforce this
definition of corresponding employment (see “Enacted Provisions” for statutory citations).
72 Language included in annual DOL appropriations acts since FY2016 addresses H-2B prevailing wages (see “Enacted
Provisions” for statutory citations).
73 Language included in annual DOL appropriations acts since FY2016 prohibits the use of funds to enforce the three-
fourths guarantee rule (see the “Enacted Provisions” section for statutory citations). In a fact sheet originally published
in April 2015, following enactment of the FY2016 appropriations act, DOL addressed the prohibitions on enforcing the
definitions of the three-fourths guarantee and corresponding employment. DOL took the position that the FY2016
appropriations riders “did not vacate these regulatory provisions, and they remain in effect, thus imposing a legal duty
on H-2B employers, even though the Department will not use any funds to enforce them until such time as the rider
may be lifted.” DOL, WHD, Fact Sheet #78E: Job Hours and the Three-Fourths Guarantee under the H-2B Program,
April 2015 (as updated), https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs78e.pdf.
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must pay or reimburse workers for transportation costs (beyond the statutory requirements
concerning early dismissal of workers) and visa costs.74
As under the H-2A visa program, the regulations address emergency circumstances in which, due
to natural or manmade catastrophic events beyond the employer’s control, an H-2B employer no
longer needs the services of a worker. In such cases, the employer may terminate the job order
with DOL approval. However, the employer remains obligated to meet certain responsibilities
toward the worker.75
Also, as under the H-2A program, ETA enforces H-2B employer compliance with obligations
related to the labor certification process. It may conduct audits of adjudicated labor certification
applications. Under certain circumstances, it may revoke an approved certification or debar an
employer from receiving future certifications.
WHD also has enforcement responsibility under the H-2B visa program, which is detailed in
regulations.76 It enforces the rights of H-2B workers and workers in corresponding employment
and the employer’s obligations to H-2B and U.S. workers, such as whether employment was
offered to U.S. workers. WHD is responsible for carrying out investigations, inspections, and law
enforcement functions as well as, in appropriate instances, imposing penalties or taking other
actions, including debarment.
Legislative Activity
Since the 1990s, Members of Congress have put forward a variety of legislative proposals
concerning foreign temporary agricultural and nonagricultural workers. Some of these proposals
have been introduced in Congress as stand-alone bills, while others have been part of larger
immigration or other measures. While most have seen no legislative action, a number of guest
worker-related provisions and bills have been considered and, in some cases, enacted into law.
Major guest worker reform legislation was considered in the 113th Congress. The Senate passed a
comprehensive immigration reform bill that would have established new temporary agricultural
and nonagricultural worker visas, reformed the H-2B visa, and phased out the H-2A visa.77 In
addition, the House Judiciary Committee reported a bill in the 113th Congress to establish a new
H-2C agricultural worker visa to replace the H-2A visa.78
While some Members continued to put forward legislation to establish new temporary worker
visas for agricultural and nonagricultural workers in the following years,79 guest worker bills

74 H-2B workers, like nonimmigrants generally, are not eligible for federally funded public assistance, with the
exception of certain emergency services. See CRS Report RL33809, Noncitizen Eligibility for Federal Public
Assistance: Policy Overview. However, nonimmigrants are eligible for Affordable Care Act (ACA) Health Insurance
Exchanges. See CRS Report R47351, Immigrants’ Access to Health Care.
75 These responsibilities include fulfilling a three-fourths guarantee for the period between the contract start date and
the termination date. 20 C.F.R. §655.20(g). For information about application of these DOL H-2B “contract
impossibility” regulations and similar DOL H-2A regulations during the COVID-19 pandemic, see DOL, ETA, OFLC,
“COVID-19, Frequently Asked Questions, Round 1,” March 20, 2020, p. 7, https://www.foreignlaborcert.doleta.gov/
pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf.
76 29 C.F.R. Part 503.
77 See archived CRS Report R43097, Comprehensive Immigration Reform in the 113th Congress: Major Provisions in
Senate-Passed S. 744.
78 See archived CRS Report R43161, Agricultural Guest Workers: Legislative Activity in the 113th Congress.
79 See, for example, H.R. 4760 (Division A, Title II), as introduced and considered on the House floor, in the 115th
Congress. H.R. 4760 would have established a new H-2C visa for temporary agricultural workers. (It was one of
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introduced in more recent years have typically proposed changes to the existing visa programs.
For example, recent bills on the H-2B visa have focused largely on the statutory annual cap. They
include proposals to establish a permanent exemption from the H-2B cap for H-2B returning
workers and to create new exemptions from the cap for H-2B workers performing certain types of
work.80
Bills on the H-2A visa introduced in recent Congresses would variously change existing H-2A
requirements concerning temporary need, wages, U.S. worker recruitment, and housing, among
other items.81 One such bill—the Farm Workforce Modernization Act (H.R. 1603)—passed the
House in the 117th Congress. This bill would have made significant changes to the H-2A visa.
With respect to required wages, it would have revised the methodology for calculating and
adjusting one of the applicable wage rates, the adverse effect wage rate. It would have established
a six-year Portable H–2A Visa Pilot Program to enable a limited number of H-2A workers to
perform agricultural labor for employers who would not need to file H-2A petitions. It would also
have allowed DHS to approve petitions for H-2A workers to perform year-round agricultural
work, subject to an initial annual numerical limitation of 20,000 (see the “Temporary or Seasonal
Nature of Work” section for related discussion).82
Enacted Provisions Since 2015
Since the 114th Congress, temporary provisions on the H-2B visa have been regularly enacted as
part of appropriations measures. One set of such provisions concerns certain H-2B regulations
related to DOL labor certification. Language included in DOL appropriations acts for each year
from FY2016 to FY2023 addresses the H-2B prevailing wage, requires use of the DHS regulatory
definition of H-2B temporary need (i.e., one year or less), and prohibits the use of funds to
enforce the definition of corresponding employment and the three-quarters guarantee rule.83 In
addition, DOL appropriations acts for each year from FY2015 to F2023 include “staggered entry”
provisions that give employers in the seafood industry with approved H-2B petitions additional
time (beyond the approved start date) to bring in workers (see the “DHS/DOL Regulations on H-
2B Employment” section).84

several bills considered on the House or the Senate floor in June 2018 that included provisions on unauthorized
childhood arrivals. House floor action on H.R. 4760 is discussed in CRS Report R45995, Unauthorized Childhood
Arrivals, DACA, and Related Legislation.) Also see S. 2827, as introduced in the 114th Congress, which proposed a
new H-2C visa for nonagricultural workers.
80 See, for example, H.R. 614, as introduced in the 118th Congress, and H.R. 4578, as introduced in the 117th Congress.
Other H-2B bills that contain both cap-related and non-cap-related provisions include H.R. 3897 and H.R. 7549, as
introduced in the 117th Congress.
81 See, for example, H.R. 1778, as introduced in the 118th Congress, and H.R. 2086, as introduced in the 117th
Congress.
82 In addition to making changes to the H-2A program, H.R. 1603 would have established a legalization program for
unauthorized agricultural workers and would have required agricultural employers to participate in an employment
eligibility verification program modeled on E-Verify. For additional discussion of H.R. 1603, see CRS Report R47061,
Immigration Legislation and Issues in the 117th Congress.
83 P.L. 114-113, Division H, Title I, §112, §113 (FY2016); P.L. 115-31, Division H, Title I, §112, §113 (FY2017); P.L.
115-141, Division H, Title I, §112, §113 (FY2018); P.L. 115-245, Division B, Title I, §111, §112 (FY2019); P.L. 116-
94, Division A, Title I, §110, §111 (FY2020); P.L. 116-260, Division A, §110, §111 (FY2021); P.L. 117-103, Division
H, Title I, §110, §111 (FY2022); P.L. 117-328, Division H, Title I, §110, §111 (FY2023).
84 P.L. 113-235, Division G, Title I, §108 (FY2015); P.L. 114-113, Division H, Title I, §111 (FY2016); P.L. 115-31,
Division H, Title I, §111 (FY2017); P.L. 115-141, Division H, Title I, §111 (FY2018); P.L. 115-245, Division B, Title
I, §110 (FY2019); P.L. 116-94, Division A, Title I, §109 (FY2020); P.L. 116-260, Division H, Title I, §109 (FY2021) ;
P.L. 117-103, Division H, Title I, §109 (FY2022); P.L. 117-328, Division H, Title I, §109 (FY2023). For additional
information about the staggered entry provision, see CRS Report R44306, The H-2B Visa and the Statutory Cap.
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A second set of temporary provisions enacted in appropriations legislation concerns the H-2B
statutory cap. H-2B cap relief has taken two different forms in recent years. For FY2016,
Congress enacted an H-2B returning worker exemption.85 Since FY2017, Congress has enacted a
different type of H-2B cap-related provision. These more recent provisions have authorized DHS,
after consultation with DOL, to make additional H-2B visas (beyond the 66,000 cap) available in
a fiscal year, subject to certain constraints, upon a determination that the needs of American
businesses cannot be satisfied with available U.S. workers.86 Joint DHS/DOL rules implementing
these provisions have made additional H-2B visas available for each year from FY2017 to
FY2023, except FY2020.87
Policy Considerations
Guest worker programs generally try to achieve two goals simultaneously: to be responsive to
legitimate employer needs for temporary labor and to provide adequate protections for U.S. and
foreign temporary workers. DOL explicitly addressed the idea of balancing the needs of
employers and workers in the supplementary information accompanying a 2011 proposed rule on
the H-2B visa:
Although the Department still seeks to maintain an efficient system, it has in this new rule
struck a balance between reducing processing times and protecting U.S. worker access to
these job opportunities.88
The balancing of broad guest worker program goals is reflected, in practice, in the particular
provisions that H-2A and H-2B proposals include on a range of component policy considerations,
such as program administration, the labor market test, and wages, among others.
Program Administration
Under the H-2A and H-2B programs, DOL makes determinations on labor certification
applications, and DHS adjudicates nonimmigrant visa petitions (see Figure 1). Under the INA, as
explained, prospective H-2A employers must apply to DOL for labor certification. The INA does
not require DOL labor certification for the H-2B visa. Rather, it makes general reference to
“consultation with appropriate agencies of the Government” as part of the process of adjudicating
petitions for “H” and other specified nonimmigrants.89 The requirement for H-2B labor
certification by DOL is established by regulation. The preamble to the 2015 DHS/DOL interim
final rule on H-2B employment includes the following rationale for DOL’s labor certification
role:
DOL is the appropriate government agency with expertise in labor questions and historic
and specific expertise in addressing labor protection questions related to the H–2B
program. This advice helps DHS fulfill its statutory duty to determine, prior to approving

85 P.L. 114-113, Division F, Title V, §565.
86 P.L. 115-31, Division F, Title V, §543 (FY2017); P.L. 115-141, Division M, Title II, §205 (FY2018); P.L. 116-6,
Division H, Title I, §105 (FY2019); P.L. 116-94, Division I, Title I, §105 (FY2020); P.L. 116-260, Division O, Title I,
§105 (FY2021); P.L. 117-103, Division O, Title II, §204 (FY2022); P.L. 117-328 Division O, Title III, §303 (FY2023).
87 For additional information about these H-2B cap-related statutory provisions and implementing rules, see CRS
Report R44306, The H-2B Visa and the Statutory Cap.
88 DOL, ETA and WHD, “Temporary Non-Agricultural Employment of H–2B Aliens in the United States,” 76 Federal
Register 15129, 15133, March 18, 2011 (see Appendix D).
89 INA §214(c)(1); 8 U.S.C. §1184(c)(1).
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an H–2B petition, that unemployed U.S. workers capable of performing the relevant service
or labor cannot be found in the United States.90
Over the years, regulatory and legislative proposals have sought to establish new agency roles in
administering guest worker programs. For example, H-2B rules proposed in 2005 by DHS and
DOL would have eliminated DOL’s labor certification role in the interest of efficiency. Under this
proposal, which was ultimately withdrawn in the face of opposition, employers would have
applied directly to DHS for H-2B workers and would have included certain labor attestations.
With respect to the H-2A program, some legislative reform measures have proposed reassigning
DOL’s administrative responsibilities to the U.S. Department of Agriculture (USDA).91
Labor Market Test
Fundamental questions about any guest worker program include if and how it tests the labor
market to determine whether U.S. workers are available for the job opportunities in question.
Under both the H-2A and H-2B programs, employers interested in hiring foreign workers must
first go through the process of labor certification. Intended to protect job opportunities for U.S.
workers, labor certification entails a determination by DOL about whether qualified U.S. workers
are available to perform the needed work and whether the hiring of foreign workers will
adversely affect the wages and working conditions of similarly employed U.S. workers.
Recruitment is the primary method used to determine U.S. worker availability. While there is
widespread agreement on the goals of labor certification, the process itself has been variously
criticized for being cumbersome, slow, expensive, and ineffective in protecting U.S. workers.
The nature of the labor market test was a key issue in the DOL H-2A and H-2B rules issued by
the George W. Bush Administration in 2008. The 2008 DOL rules for both programs changed the
traditionally supervised labor certification process into an attestation-based certification process
(see Appendix D). In the preamble to its 2008 proposed H-2A rule, DOL cited criticism of the
labor certification process as “complicated, time-consuming, and requiring the considerable
expenditure of resources by employers.” It further stated that its proposals “to re-engineer the H–
2A program processing” will “simplify the process by which employers obtain a labor
certification while maintaining, and even enhancing, the Department’s substantial role in ensuring
that U.S. workers have access to agricultural job opportunities.”92
Current regulations on H-2A and H-2B employment incorporate a supervised, certification-based
model of labor certification (see the “DOL Regulations on H-2A Employment” and “DHS/DOL
Regulations on H-2B Employment” sections above). A main argument made in support of this
change concerned the need to restore protections for U.S. and foreign workers. For example, a
2011 DOL proposed H-2B rule stated
[T]here are insufficient worker protections in the current attestation-based model in which
employers merely assert, and do not demonstrate, that they have performed an adequate
test of the U.S. labor market and one which is in accordance with the regulations.93

90 2015 DHS/DOL interim final H-2B rule, p. 24045.
91 See, for example, H.R. 575, as introduced in the 118th Congress.
92 DOL, ETA and WHD, “Temporary Agricultural Employment of H–2A Aliens in the United States; Modernizing the
Labor Certification Process and Enforcement,” 73 Federal Register 8538, 8542, February 18, 2008.
93 DOL, ETA and WHD, “Temporary Non-Agricultural Employment of H–2B Aliens in the United States,” 76 Federal
Register 15129, 15132, March 18, 2011 (see Appendix D).
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Wages
Wage requirements have been a key area of contention about the H-2A and H-2B programs. To
prevent adverse effects on similarly employed U.S. workers, the H-2A and H-2B programs
require employers to offer wages at or above specified levels. The particular wage requirements,
which vary by program, are in regulation.94 Under the H-2A program, employers must pay their
workers the highest of the federal or applicable state minimum wage rate, the applicable
prevailing wage rate,95 the adverse effect wage rate (AEWR), or the agreed-upon collective
bargaining wage rate. Under the H-2B program, employers must pay their workers the highest of
the federal, state, or local minimum wage or the prevailing wage rate.
Policy differences about H-2A wage requirements have centered on the AEWR, which
historically has often been the highest of the required wage rates. The H-2A visa is the only
nonimmigrant visa subject to this wage rate. For H-2A workers engaged in non-range
occupations, the applicable AEWR is a state-level, hourly rate that is set annually and is based on
labor force survey data.96 Farm labor advocates have argued that the AEWR is necessary to
protect U.S. agricultural workers from a possible depression of wages resulting from the hiring of
foreign workers. Employers have long maintained that the AEWR results in inflated wage rates.
Legislative proposals over the years to reform the H-2A program or establish new agricultural
guest worker programs have often included provisions to freeze, eliminate, or effectively redefine
the AEWR.97 In the 117th Congress, House-passed H.R. 1603 proposed to calculate separate
AEWRs for individual occupational classifications, preferably by state or region if such data were
reported. The bill also included provisions to limit annual AEWR increases and decreases. A fact
sheet on H.R. 1603, prepared by the bill’s sponsor, stated that the bill “reforms H-2A wages to
better reflect real-world wages, while protecting against sudden wage increases that disrupt
employer planning and operations.”98 A sponsor-prepared fact sheet on a similar predecessor bill
passed by the House in the 116th Congress also stated, “Some workers would see higher wages
(machine operators), while others would see lower wages (crop workers).”99
Regarding H-2B wage requirements, provisions included in annual DOL appropriations acts since
FY2016 mandate that the prevailing wage for H-2B purposes be the greater of the actual wage
paid by the employer to other employees with similar experience and qualifications for the
position in the same location, or the prevailing wage level for the occupational classification in
the applicable geographic area. The appropriations language further requires DOL to accept a
private wage survey for determining the prevailing wage unless “the methodology and data in the

94 20 C.F.R. §655.120, §655.122(l) (H-2A); 20 C.F.R. §655.20(a) (H-2B).
95 In general, the prevailing wage rate is the average wage paid to similarly employed workers in an occupation in an
area of intended employment.
96 The hourly AEWR is based on annual data from one of two sources: the U.S. Department of Agriculture’s (USDA’s)
Farm Labor Survey and the DOL Bureau of Labor Statistics’ (BLS’) Occupational Employment and Wage Statistics
Survey. An alternative monthly AEWR is used for range occupations; see 20 C.F.R. §655.211. For all AEWRs for
2023, see DOL, “H-2A Adverse Effect Wage Rates,” updated March 2, 2023, https://flag.dol.gov/wage-data/adverse-
effect-wage-rates.
97 See, for example, S. 874 and H.R. 1778, as introduced in the 118th Congress, and H.R. 9101, as introduced in the
117th Congress.
98 See Farm Workforce Modernization Act, https://lofgren.house.gov/sites/evo-subsites/lofgren-evo.house.gov/files/
3.3.21%20-%20Farm%20Workforce%20Modernization—Two%20Pager.pdf.
99 See Farm Workforce Modernization Act, https://lofgren.house.gov/sites/evo-subsites/lofgren-evo.house.gov/files/
Farm%20Workforce%20Modernization.pdf. The bill passed by the House in the 116th Congress was H.R. 5038.

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provided survey are not statistically supported” (see the “Enacted Provisions” section for
statutory citations).
Temporary or Seasonal Nature of Work
The H-2A and H-2B programs are, by definition, limited to temporary or seasonal work.100 They
are intended to meet employers’ temporary—and not permanent—needs for labor when U.S.
workers cannot be found.
This “temporary or seasonal” requirement places restrictions on both programs. With respect to
the H-2A program, it means that the program cannot be used to meet employers’ year-round
agricultural labor needs absent a statutory change. There is a long-standing exception to this year-
round restriction for herding on the range.101 Legislation in recent Congresses has sought to
include dairy industry activities—most of which are excluded from the H-2A program as being
year-round—in the H-2A program by amending INA provisions on the H-2A visa.102 Other
legislative proposals would more broadly amend the statutory definition of the H-2A visa to
eliminate the requirement that H-2A nonimmigrants perform work “of a temporary or seasonal
nature.”103 H.R. 1603, as passed by the House in the 117th Congress, proposed a more incremental
approach. It would have permitted a limited number of H-2A workers (initially capped at 20,000
per year) to perform year-round employment, with a set aside for dairy work.
Numerical Limits
A numerical cap provides a means, separate from program requirements, of limiting the number
of foreign workers who can be admitted annually in a visa category. The H-2A visa is not
numerically limited. The H-2B program, by contrast, is statutorily capped at 66,000 annually.
Certain H-2B petitions are exempt from the cap, such as petitions filed for current H-2B workers
who are seeking an extension of stay and petitions filed for fish roe workers and supervisors.104
Annual numerical limitations on the H-2B visa and other capped temporary worker visas are
implemented by DHS at the petition stage. Under DHS regulations
When calculating the numerical limitations ... for a given fiscal year, USCIS will make
numbers available to petitions in the order in which the petitions are filed. USCIS will
make projections of the number of petitions necessary to achieve the numerical limit of

100 The INA definition of the H-2A nonimmigrant category generally requires the agricultural work to be “of a
temporary or seasonal nature” (INA §101(a)(15)(H)(ii)(a); 8 U.S.C. §1101(a)(15)(H)(ii)(a)). The INA definition of the
H-2B nonimmigrant category requires the performance of nonagricultural “temporary service or labor” (INA
§101(a)(15)(H)(ii)(b); 8 U.S.C. §1101(a)(15)(H)(ii)(b)). In the case of both the H-2A and H-2B visas, this temporary
nature-of-the-work requirement is separate from, and in addition to, the requirement that workers must be coming for a
temporary period of time.
101 Herding activities are not mentioned in the INA definition of the H-2A nonimmigrant category. However, according
to DOL, the inclusion of herding, specifically sheepherding, in the H-2A program has a statutory basis: “Sheepherders
… owe their inclusion in the program to a statutory provision dating back to the 1950s. That legislative inclusion was
implicitly ratified in [the Immigration Reform and Control Act of 1986].” See DOL, ETA and WHD, “Temporary
Agricultural Employment of H-2A Aliens in the United States,” 75 Federal Register 6884, 6891, February 12, 2010.
For many years, DOL sub-regulatory guidance (special procedures) governed the labor certification process for
occupations in sheep and goat herding and range production of livestock. In 2015, DOL published a final rule to
establish a single set of regulations for H-2A employment in these occupations (see the “Range Herding and Livestock
Regulations” section).
102 See, for example, H.R. 1571, as introduced in the 117th Congress.
103 See, for example, S. 2443, as introduced in the 117th Congress.
104 For additional information, see CRS Report R44306, The H-2B Visa and the Statutory Cap.
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approvals, taking into account historical data related to approvals, denials, revocations, and
other relevant factors. USCIS will monitor the number of petitions (including the number
of beneficiaries requested when necessary) received and will notify the public of the date
that USCIS has received the necessary number of petitions (the “final receipt date”).105
In other words, in a given fiscal year USCIS accepts the number of petitions it estimates will
result in the appropriate number of foreign workers receiving a visa or otherwise obtaining status
under a particular temporary worker visa program. USCIS has described the inherent challenges
in this system in connection with the H-2B visa.
It can be difficult to estimate in advance how many beneficiaries of an H-2B petition
approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa
by the Department of State (DOS).106
If USCIS accepts more petitions than necessary, the H-2B cap can be exceeded. In at least one
year (FY2015), however, USCIS initially accepted too few petitions and had to briefly reopen the
window for accepting cap-subject H-2B petitions.107
In years when the demand for H-2B visas exceeds the supply, there is pressure to admit additional
H-2B workers. Temporary statutory provisions have been enacted to allow for the admission of
additional H-2B workers (beyond the 66,000 cap) every year since FY2016 (see the “Enacted
Provisions” section above). These provisions permit the admission of increased numbers of H-2B
workers, while leaving the statutory annual 66,000 limit in place. Legislation has been introduced
in recent Congress to increase the statutory cap and establish permanent H-2B cap exemptions.108
Ability of Workers to Change Employers
Under the H-2A and H-2B programs, a U.S. employer, after receiving labor certification from
DOL, may petition DHS to employ a foreign worker to do a particular job for a period of time.
Absent any special circumstances, at the conclusion of the work period, the H-2A or H-2B worker
is permitted to stay in the United States for an additional 30 days or 10 days, respectively, during
which he or she can look for another job with an H-2A or H-2B-certified employer (who would
then petition for the worker). The fact that the employee is tied to his or her petitioning employer
has been a longtime concern of labor advocates, who have called for greater portability in the H-
2A and H-2B programs.109
H.R. 1603, as passed by the House in the 117th Congress, would have directed DHS to establish a
“portable H-2A visa pilot program,” which would have run for six years. To be eligible for
portable H-2A status, workers would have had to previously been granted and maintained H-2A
status during their period of admission. Participating agricultural employers, who would have
been required to complete a registration process, could have employed workers with portable H-
2A status without filing a petition. Employment could have been terminated by the worker or the
employer at any time. After ending employment, a portable H-2A worker would have had 60 days

105 8 C.F.R. §214.2((h)(8)(ii)(B).
106 DHS, U.S. Citizenship and Immigration Services (USCIS), “USCIS to Reopen H-2B Cap for the Second Half of
Fiscal Year 2015,” June 5, 2015, https://www.uscis.gov/news/alerts/uscis-reopen-h-2b-cap-second-half-fiscal-year-
2015.
107 See CRS Report R44306, The H-2B Visa and the Statutory Cap.
108 See, for example, H.R. 614, as introduced in the 118th Congress, and H.R. 4578, as introduced in the 117th Congress.
109 See, for example, Daniel Costa, “As the H-2B visa program grows, the need for reforms that protect workers is
greater than ever,” Economic Policy Institute, August 18, 2022, https://www.epi.org/publication/h-2b-industries-and-
wage-theft/.
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to find employment with another registered employer or leave the country. The program would
have been limited to 10,000 portable H-2A workers at any one time.
Treatment of Family Members
The INA allows for the admission to the United States of the spouses and minor children of
foreign workers on H-2A, H-2B, and other “H” visas who are accompanying or following to join
the worker. These family members are issued H-4 visas and do not count against the numerical
cap, if any, on the relevant temporary worker visa (such as the H-2B visa). Allowing for the
admission of guest workers’ spouses and minor children may enable families to stay together. On
the other hand, this practice has been faulted for decreasing incentives for guest workers to return
home after their authorized period of stay. Some past legislative proposals to establish new guest
worker programs would have explicitly prohibited family members from accompanying or
following to join principal aliens.110
Enforcement
Another set of considerations relates to enforcement of the terms of guest worker programs. With
respect to the H-2A program, the INA broadly authorizes the Secretary of Labor to
take such actions, including imposing appropriate penalties and seeking appropriate
injunctive relief and specific performance of contractual obligations, as may be necessary
to assure employer compliance with terms and conditions of employment.111
More limited language added to the INA in 2005 applies to the H-2B program. These provisions
authorize the Secretary of Homeland Security to impose administrative remedies and to deny
certain petitions filed by an employer if the Secretary finds “a substantial failure to meet any of
the conditions of the [H-2B] petition” or “a willful misrepresentation of a material fact in such
petition.”112 As discussed, the Secretary of Homeland Security has delegated this enforcement
authority to the Secretary of Labor in accordance with an agreement between the two agencies.
The Secretary of Labor subsequently delegated this authority to WHD, which is now responsible
for assuring employer compliance with the terms and conditions of H-2B employment.113
Another enforcement-related question concerns what type of mechanism, if any, ensures that
guest workers do not remain in the United States beyond their authorized period of stay and
become part of the unauthorized population. Among the related regulatory provisions currently in
effect are provisions establishing notification requirements for H-2A and H-2B employers. DHS
regulations on the H-2A visa and the H-2B visa require petitioners to notify DHS within two
work days when an H-2A or H-2B worker fails to report at the start of the employment period,
absconds114 from the worksite, or is terminated prior to completion of the work, or when the work
for which H-2A or H-2B workers were hired is completed early.115 In the case of the H-2B visa,
DHS explained the purpose of these notification requirements as enabling the agency

110 See, for example, H.R. 4760 (Division A, Title II), as introduced in the 115th Congress.
111 INA §218(g)(2); 8 U.S.C. §1188(g)(2).
112 INA §214(c)(14)(A); 8 U.S.C. §1184(c)(14)(A).
113 U.S. Department of Labor, Office of the Secretary, Secretary’s Order 01–2014, 79 Federal Register 77527,
December 24, 2014.
114 Absconding is defined as not reporting for work for five consecutive work days without the employer’s consent. 8
C.F.R. §§214.2(h)(5)(vi)(E), (h)(6)(i)(F)(2).
115 8 C.F.R. §§214.2(h)(5)(vi)(B)(1), (h)(6)(i)(F)(1).
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to keep track of H–2B workers while they are in the United States and take appropriate
enforcement action where DHS determines that the H–2B workers have violated the terms
and conditions of their nonimmigrant stay.116
Other suggestions that have been offered to help ensure that temporary workers depart at the end
of their authorized period of stay include involving the workers’ home countries in guest worker
programs. Another idea is to create an incentive for foreign workers to leave the United States at
the appropriate time by, for example, withholding earnings or otherwise setting aside a sum of
money for each worker that would only become available once the worker returned home.117
Unauthorized Workers
The H-2A and H-2B visa programs account for a fraction of all the workers in the United States
performing the type of agricultural and nonagricultural work covered by these visas.
Unauthorized workers comprise a sizeable percentage of workers in some related industries and
occupations. For example, according to an analysis of 2017 and 2018 American Community
Survey data by the Center for American Progress, unauthorized workers represented about a
quarter of workers in the farming, fishing, and forestry occupational group and about 23% and
21%, respectively, of construction laborers and landscaping and groundskeeping workers.118
Policymakers have periodically considered establishing a statutory mechanism to grant permanent
immigration status to unauthorized or authorized guest workers. Historically, these discussions
have focused on agricultural workers, and in some past and present legislative measures, guest
worker reform provisions have been paired with programs to grant permanent immigration status.
For example, along with its agricultural guest worker provisions, the comprehensive immigration
reform bill passed by the Senate in 2013 proposed a two-stage agricultural worker legalization
program, through which farm workers who had performed a requisite amount of agricultural work
and satisfied other requirements could have obtained legal temporary resident status (termed
“blue card” status). After meeting additional agricultural work and other requirements, these
workers could have applied for lawful permanent resident (LPR) status. (Unauthorized workers
and H-2A workers would have been eligible for this program.)119
More recently, in the 117th Congress, House-passed H.R. 1603 would have established a two-
stage legalization program for unauthorized agricultural workers to first obtain legal temporary
certified agricultural worker (CAW) status and then LPR status, subject to work and other
requirements at each stage. Alternatively, H.R. 1603 would have permitted workers to remain in
CAW status indefinitely (without ever applying for LPR status) provided they continued to
perform a requisite amount of agricultural work annually. This “indefinite temporary status”
option distinguished H.R. 1603 from the 2013 Senate bill and other past agricultural legalization
measures, which treated the legal temporary status as a way station to LPR status and limited how
long an individual could remain in that temporary status. In addition, H.R. 1603 included

116 U.S. Department of Homeland Security, “Changes to Requirements Affecting H-2B Nonimmigrants and Their
Employers,” 73 Federal Register 78104, 78116, December 19, 2008 (hereinafter cited as “2008 DHS H-2B rule”).
117 See, for example, H.R. 2086, as introduced in the 117th Congress. This bill also would require employers to provide
certain funds to be used for the administration and enforcement of the H-2A program.
118 Nicole Prchal Svajlenka, “Protecting Undocumented Workers on the Pandemic’s Front Lines,” Center for American
Progress, December 2, 2020, https://www.americanprogress.org/article/protecting-undocumented-workers-pandemics-
front-lines-2/. According to this analysis, there were more than 7 million unauthorized immigrants working in the
United States, accounting for 4.4 percent of the labor workforce.
119 Sections 2211-2212 of S. 744, as passed by the Senate in the 113th Congress. For further information about this
proposal and other proposals, see archived CRS Report R43161, Agricultural Guest Workers: Legislative Activity in the
113th Congress.
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provisions not in earlier agricultural legalization measures to enable an H-2A worker who had
performed a threshold amount of H-2A work in each of 10 years to self-petition for LPR status.120
Conclusion
Many policymakers assert that the H-2A and H-2B visa programs are not adequately meeting
employers’ labor needs and/or are not adequately protecting U.S. and foreign workers, although
their particular criticisms vary widely. In past years, proposed solutions have taken the form of
reforms to the H-2A and H-2B visas as well as new guest worker visa programs. In the current
climate, pursuing reforms to existing visa programs seems to be the course more policymakers
are likely to follow.

120 For additional information about H.R. 1603, see CRS Report R47061, Immigration Legislation and Issues in the
117th Congress.
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Appendix A. H-2A and H-2B Certifications by State
Table A-1. Top 10 States Granted H-2A Labor Certifications: FY2021 and FY2022
Rankings based on number of positions certified

FY2021
FY2022
Positions
Positions
Ranking
State
Certified
State
Certified
1
Florida
44,706 Florida
50,973
2
Georgia
35,205 California
43,760
3
California
32,333 Georgia
34,974
4
Washington
28,727 Washington
33,049
5
North Carolina
23,479 North Carolina
25,624
6
Louisiana
12,473 Michigan
15,524
7
Michigan
11,376 Louisiana
13,770
8
Arizona
10,842 Arizona
13,731
9
New York
9,192 Texas
11,655
10
Texas
8,553 New York
9,876

Subtotal
216,886 Subtotal
252,936

Total, All States
317,619 Total, All States
371,619
Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification, H-2A Temporary Agricultural Program - Selected Statistics, Fiscal Year (FY) 2021,
and H-2A Temporary Agricultural Program - Selected Statistics, Fiscal Year (FY) 2022.
Table A-2. Top 10 States Granted H-2B Labor Certifications: FY2021 and FY2022
Rankings based on number of positions certified

FY2021
FY2022
Positions
Positions
Ranking
State
Certified
State
Certified
1
Texas
19,064 Texas
21,220
2
Florida
14,127 Florida
19,053
3
Alaska
12,804 Colorado
9,294
4
Louisiana
9,493 North Carolina
7,738
5
Colorado
7,868 Pennsylvania
7,566
6
Pennsylvania
5,927 Louisiana
7,373
7
North Carolina
5,856 Michigan
6,931
8
Oregon
5,144 South Carolina
6,392
9
Michigan
4,875 Ohio
6,149
10
Ohio
4,818 Utah
6,076

Subtotal
89,976 Subtotal
97,792

Total, All States
181,451 Total, All States
211,254
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Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification, H-2B Temporary Non-Agricultural Program - Selected Statistics, Fiscal Year (FY)
2021 EOY, and H-2B Temporary Non-Agricultural Program - Selected Statistics, Fiscal Year (FY) 2022.
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Appendix B. H-2B Certifications by Occupation
In FY2022, DOL approved 11,567 H-2B labor certification applications. As part of these
applications, DOL approved 211,254 requests for H-2B positions.
Typically, a majority of H-2B requests certified by DOL are for workers in a few occupations. In
FY2022, as shown in Table B-1, 74% of certified positions were in 10 occupations. One
occupation, landscaping & groundskeeping worker, accounted for 37% of the total number of H-
2B positions certified.
Table B-1. Number of Certified H-2B Positions by Occupation, FY2022
Number of
Percentage of
Workers
Total Workers
Cumulative
Ranking
Occupation
Certified
Certified
Percentage
1
Landscaping & groundskeeping worker
78,304
37.1%
37.1%
2
Maid & housekeeping cleaner
17,253
8.0%
45.1%
3
Forest & conservation worker
13,769
6.5%
51.6%
4
Amusement & recreation attendant
11,277
5.3%
56.9%
5
Meat, poultry & fish cutter
8,004
3.8%
60.7%
6
Cook, restaurant
7,837
3.7%
64.4%
7
Construction laborer
6,398
3.0%
67.4%
8
Waiter & waitress
6,286
3.0%
70.4%
9
Laborer & Freight Mover
4,216
2.0%
72.4%
10
Counter Attendant
3,353
1.6%
74.0%

Other
54,557
26.0%
100.0%

Total
211,254
100.0%

Source: CRS presentation of data from U.S. Department of Labor, Employment and Training Administration,
Office of Foreign Labor Certification, H-2B Temporary Non-Agricultural Program - Selected Statistics, Fiscal Year (FY)
2022.
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H-2A and H-2B Temporary Worker Visas: Policy and Related Issues

Appendix C. H-2A and H-2B Visa Issuances
Table C-1. Number of H-2A and H-2B Visas Issued, FY1992-FY2022
Fiscal Year
H-2A Visas Issued
H-2B Visas Issued
1992
6,445
12,552
1993
7,243
9,691
1994
7,721
10,400
1995
8,379
11,737
1996
11,004
12,200
1997
16,011
15,706
1998
22,676
20,192
1999
28,568
30,642
2000
30,201
45,037
2001
31,523
58,215
2002
31,538
62,591
2003
29,882
78,955
2004
31,774
76,169
2005
31,892
89,135
2006
37,149
122,541
2007
50,791
129,547
2008
64,404
94,304
2009
60,112
44,847
2010
55,921
47,403
2011
55,384
50,826
2012
65,345
50,009
2013
74,192
57,600
2014
89,274
68,102
2015
108,144
69,684
2016
134,368
84,627
2017
161,583
83,600
2018
196,409
83,774
2019
204,801
97,623
2020
213,394
61,865
2021
257,898
95,053
2022
298,336
124,644
Source: CRS presentation of data from U.S. Department of State, Bureau of Consular Affairs.
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Appendix D. Supplementary Information on H-2A
and H-2B Regulations
H-2A Rules
The H-2A visa program is governed mainly by a DHS final rule issued in 2008121 and a DOL final
rule issued in 2022.122 In addition, DOL issued a final rule in 2023 concerning H-2A wage
requirements.123 (For a discussion of temporary rules on H-2A visas related to the COVID-19
emergency, see the “DHS Regulations on the H-2A Visa” section.)
Background
In 2008, during the George W. Bush Administration, DHS and DOL published final rules to
significantly amend their respective H-2A regulations.124 The agencies issued these rules to
streamline the H-2A program in the aftermath of unsuccessful congressional efforts to enact
comprehensive immigration reform legislation with guest worker provisions.
The DOL rule was controversial. Prior to its issuance, the H-2A labor certification process had
been a fully supervised certification-based process, in which federal or state officials reviewed an
employer’s actual efforts or documentation to ensure compliance with program requirements. The
2008 rule replaced this supervised process with an attestation-based process, in which prospective
H-2A employers had to attest in their applications, under threat of penalties, that they complied
with H-2A program requirements.
Under the Obama Administration, the 2008 DHS rule was retained, but the 2008 DOL rule was
replaced with a new H-2A final rule issued in 2010.125 In the preamble to the proposed version of
this replacement rule, DOL cited concerns about employer noncompliance with program
requirements under the 2008 rule. It explained the need for new rulemaking, in part, as follows
The Department, upon due consideration, believes that the policy underpinnings of the
2008 Final Rule, e.g. streamlining the H–2A regulatory process to defer many
determinations of program compliance until after an Application has been fully
adjudicated, do not provide an adequate level of protection for either U.S. or foreign
workers.126
The 2010 DOL H-2A final rule reversed changes made by the 2008 rule to the H-2A labor
certification process and reestablished the type of compliance-demonstration process that had
been in effect prior to the 2008 rule.

121 DHS, “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 Federal Register 76891, December 18, 2008.
122 DOL, ETA and WHD, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 87
Federal Register 61660, October 12, 2022.
123 DOL, ETA, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H–2A Nonimmigrants in
Non-Range Occupations in the United States,” 88 Federal Register 12760, February 28, 2023.
124 DHS, “Changes to Requirements Affecting H-2A Nonimmigrants,” 73 Federal Register 76891, December 18, 2008;
DOL, ETA and WHD, “Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the
Labor Certification Process and Enforcement,” 73 Federal Register 77110, December 18, 2008.
125 DOL, ETA and WHD, “Temporary Agricultural Employment of H-2A Aliens in the United States,” 75 Federal
Register 6884, February 12, 2010.
126 DOL, ETA and WHD, “Temporary Agricultural Employment of H-2A Aliens in the United States,” 74 Federal
Register 45906, 45908, September 4, 2009.
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2019 DOL Final and Proposed Rules
In 2019, during the Trump Administration, DOL issued a final H-2A rule that made a few changes
to the labor certification process.127 The rule eliminated a regulatory requirement that a
prospective H-2A employer advertise its job opportunity in a print newspaper as part of its
required recruitment activities. It also added a new regulatory provision allowing the ETA officer
making a determination on an H-2A labor certification application, where appropriate, to direct
the SWA to notify organizations that provide employment and training services about the job
opportunity. In addition, under the rule, DOL enhanced the publicly available electronic job
registry (https://seasonaljobs.dol.gov/jobs) where it posts approved H-2A job orders to recruit
U.S. workers.128
Another 2019 DOL proposed rule would have made more fundamental changes to the H-2A
program.129 It would have amended ETA regulations on the labor certification process and WHD
regulations on the enforcement of H-2A employers’ contractual obligations. Among the major
regulatory changes included in the rule, DOL proposed to expand the definition of agriculture for
H-2A purposes to encompass reforestation and pine straw activities, and to replace the existing
fifty percent rule with a new 30-day rule (see the “H-2A Statutory Provisions” section). In the
preamble to its 2022 H-2A final rule, as published in the Federal Register, DOL under the Biden
Administration described the relationship between its rule and the 2019 proposed rule, as follows:
“After careful consideration of the public comments received, this final rule adopts much of the
regulatory text proposed in the [2019 proposed rule] with some significant changes.”130
The 2019 proposed rule also would have revised the methodologies used to determine two wage
rates relevant to the H-2A program: the AEWR and the prevailing wage rate. The AEWR
methodology was not addressed in the 2022 final rule. DOL ultimately issued an H-2A wage rule
in 2023 that revised the methodology for making AEWR determinations for non-range
occupations.131
H-2B Rules
The H-2B visa program is governed mainly by a DHS final rule issued in 2008132 and a
DHS/DOL interim final rule issued in 2015.133 A DHS/DOL rule issued in 2019 made some

127 DOL, ETA and WHD, “Modernizing Recruitment Requirements for the Temporary Employment of H–2A Foreign
Workers in the United States,” 84 Federal Register 49439, September 20, 2019.
128 As explained in the supplementary information to the rule, “[DOL] will enhance the functional capabilities of this
registry so that it also serves as a job search website that broadly advertises and disseminates H–2A job opportunities to
U.S. workers.” Ibid, p. 49444.
129 DOL, ETA and WHD, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 84
Federal Register 36168, July 26, 2019.
130 DOL, ETA and WHD, “Temporary Agricultural Employment of H–2A Nonimmigrants in the United States,” 87
Federal Register 61660, 61662, October 12, 2022.
131 DOL, ETA, “Adverse Effect Wage Rate Methodology for the Temporary Employment of H–2A Nonimmigrants in
Non-Range Occupations in the United States,” 88 Federal Register 12760, February 28, 2023. The preamble includes a
summary of the developments subsequent to the publication of the 2019 proposed rule that impacted the issuance of
this final rule. See pp. 12762-12763.
132 DOL, ETA and WHD, “Labor Certification Process and Enforcement for Temporary Employment in Occupations
Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes,” 73
Federal Register 78020, December 19, 2008.
133 2015 DHS/DOL interim final H-2B rule.
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changes to the H-2B labor certification process.134 In addition, a DHS/DOL final rule issued in
2015 revised the methodology for calculating prevailing wage rates under the H-2B program.135
(For a discussion of temporary rules on H-2B visas related to the COVID-19 emergency, see the
“DHS Regulations on the H-2B Visa” section.)
Background
Mirroring regulatory actions taken on the H-2A program, DHS and DOL under the George W.
Bush Administration published final rules to significantly amend their respective H-2B
regulations in 2008. Under the DOL H-2B rule, which streamlined the labor certification process,
determinations about H-2B program compliance were made only after a labor certification
application had been adjudicated.
The Obama Administration retained the DHS H-2B rule but wanted to replace the DOL rule. To
that end, DOL published a new H-2B proposed rule in 2011. In this proposed rulemaking, DOL
took the position that the 2008 rule did not provide sufficient protections for U.S. or foreign
workers. It further described problems of noncompliance
[I]n the first year of the operation of the attestation-based system our experience indicates
that employers are attesting to compliance with program obligations with which they have
not complied, and that employers do not appear to be recruiting, hiring and paying U.S.
workers, and in some cases the H-2B workers themselves, in accordance with established
program requirements.136
DOL issued an H-2B final rule in 2012 that required employers to show compliance with
recruitment and other requirements in advance of DOL making a determination on the labor
certification application.137 This rule, however, never became operative due to court action. A key
issue in the litigation was whether DOL had the authority to promulgate regulations for the H-2B
program (see the “DHS/DOL Regulations on H-2B Employment” section). In April 2015, DOL
and DHS jointly issued two H-2B rules: an interim final rule on H-2B employment that was
“virtually identical” to the DOL 2012 final rule,138 and a companion final rule on prevailing wage
rates under the H-2B program.
2019 DOL Final Rule
A 2019 DHS/DOL H-2B final rule made changes to the H-2B labor certification process that were
analogous to some of the changes the 2019 DOL H-2A final rule made to the H-2A certification
process.139 Like the H-2A rule, the 2019 H-2B rule eliminated a regulatory requirement that a
prospective H-2A employer advertise its job opportunity in a print newspaper. DOL also indicated
that it would post H-2B job opportunities on the same expanded electronic job registry used to
advertise H-2A jobs, as discussed above.

134 DOL, ETA and WHD, “Modernizing Recruitment Requirements for the Temporary Employment of H–2B Foreign
Workers in the United States,” 84 Federal Register 62431, November 15, 2019.
135 DHS and DOL, ETA, “Wage Methodology for the Temporary Non-Agricultural Employment H–2B Program,” 80
Federal Register 24146, April 29, 2015.
136 DOL, ETA and WHD, “Temporary Non-Agricultural Employment of H–2B Aliens in the United States,” 76
Federal Register 15129, 15132, March 18, 2011.
137 DOL, ETA and WHD, “Temporary Non-Agricultural Employment of H-2B Aliens in the United States,” 77 Federal
Register 10038, February 21, 2012.
138 2015 DHS/DOL interim final H-2B rule, p. 24043.
139 DOL, ETA and WHD, “Modernizing Recruitment Requirements for the Temporary Employment of H–2B Foreign
Workers in the United States,” 84 Federal Register 62431, November 15, 2019.
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H-2A and H-2B Temporary Worker Visas: Policy and Related Issues

Author Information

Andorra Bruno

Specialist in Immigration Policy

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