Under these visa programs, the applicant for admission to the U.S. must be coming to the country to perform service or labor work that is temporary, and that does not have a corresponding U.S. lawful permanent resident or citizen in the job market to perform that job.  Seasonal agricultural workers are properly admitted under the H-2A category and all other temporary workers (factory, restaurant, etc.) should apply for the H-2B visa.

While the H-2A program is unrestricted in its provisioning and may allow an infinite amount of agricultural workers into the U.S. each year, the H-2B program has a limit of 66,000 workers per year, or 33,000 per six month term, or half of the U.S. fiscal year.  To check the most recent numbers for H-2B availability, you can visit the USCIS “Cap Count for H-2B Nonimmigrants” web page:

USCIS - Cap Count for H-2B Nonimmigrants

In order for a U.S. employer to become eligible to petition temporary workers, s/he must file the labor certification application with the U.S. Department of Labor who will confirm that there are no U.S. workers available to fill the position, and will issue a certification.  The law requires the employer to publish a job offer for 60 to 120 days to show there has been an effort to recruit U.S. workers.

Once the labor certification has been completed, the employer files the “I-129 Petition for a Nonimmigrant Worker” with USCIS, obtains approval of the petition and can then send the prospective employees to apply to retrieve their visa from the U.S. embassy or consulate abroad.