Department of Homeland Security Will Supplement H-2B Cap for “Peak Load Need”

Department of Homeland Security
November 22, 2022

Many companies in the United States struggle to find enough workers, but they may soon have help. The Department of Homeland Security (DHS) and the Department of Labor (DOL) will help by authorizing supplemental visa numbers for the H-2B temporary non-agricultural worker program. This authorization could help several industries, such as construction, tourism, food services, landscaping services, and hospitality. When faced with insufficient qualified, available, and willing US workers, these companies often rely on seasonal workers to keep their businesses running.

H-2B visas become available for US employers sponsoring foreign workers every fiscal year beginning on October 1. There are 66,000 visas available, with 33,000 designated for employees beginning work from October 1 through March 31. The remaining 33,000 go to employees starting work from April 1 to September 30. However, the DHS has stated that a supplement of 64,716 H-2B visas will become available in FY 2023.

This addition means nearly twice the number of H-2B visas will become available in FY 2023, which will help many companies suffering from labor shortages. In addition, there will also be 20,000 supplemental visas allocated for workers from Honduras, El Salvador, Guatemala, and Haiti. These visas could also help those companies needing additional workers.

The DHS is also working to provide US and foreign workers with more protections. For example, US employers who have violated labor laws in the past could face more scrutiny in the supplemental cap petition process. The DHS also formed an H-2B Worker Protection Taskforce. This task force will work to protect the program’s integrity.

Qualifications for H-2B Classification

The H-2B program intends to help US employers sponsor foreign national workers to fill temporary non-agricultural jobs in the US. Here are the qualifications for the program:

“To qualify for H-2B nonimmigrant classification, the petitioner must establish that:

  • There are not enough US workers who are able, willing, qualified, and available to do the temporary work.
  • Employing H-2B workers will not adversely affect similarly employed US workers’ wages and working conditions.
  • The need for the prospective worker’s services or labor is temporary, regardless of the underlying job’s description. The following constitutes an employer’s need as temporary:
  • One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
  • An otherwise permanent employment situation experienced a temporary event of short duration, which created the need for a temporary worker.
  • Not employed workers to perform the service or labor in the past and will not need workers to perform the services or work in the future;


Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:

  • Traditionally tied to a season of the year by an event or pattern; and
  • Of a recurring nature.

Note: You cannot claim a seasonal need if the time when you do NOT need the service or labor is:

  • Unpredictable;
  • Subject to change; or
  • Considered a vacation period for your permanent employees.


Peak load needs – A petitioner claiming a peak load need must show that it:

  • Regularly employs permanent workers to perform the services or labor at the place of employment;
  • Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand; and
  • The temporary additions to staff will not become part of the employer’s regular operation.


Intermittent need – A petitioner claiming an intermittent need must show that it:

  • Has not employed permanent or full-time workers to perform the services or labor; and
  • Occasionally or intermittently needs temporary workers to perform services or labor for short periods.”

Employers who want to sponsor H-2A workers must provide a valid temporary labor certification from the US Department of Labor or, for those employed in Guam, the Guam Department of Labor.

Final Thoughts

H-2B workers can be beneficial in providing necessary temporary workers for employers in many industries. However, it is crucial to remember that employers must complete Form I-9 for these employees, as it is for all new employees. However, completing Form I-9 for these employees can prove more complicated due to the different types of documentation they may present. The easiest way to ensure correct and completed forms is by using an electronic I-9 management system. This system will guide employers through the entire process, thus ensuring correctly filled Form I-9s. Finally, the system will safely and securely store the form, allowing easy access as needed.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance