H-2B for staffing agencies: job contractor rules, joint employment and the fiscal 2027 cap

A staffing agency that places workers with clients, without supervising their day-to-day work, can use the H-2B program only as a "job contractor": under 20 CFR 655.19 the agency and each client file a labor certification application as joint employers, both sign it, and each becomes fully responsible for the program's obligations to the workers. The agency must also document its own temporary need, not the client's, and only a seasonal need or a one-time occurrence qualifies (20 CFR 655.6(c)). As of November 2026, the H-2B cap for the first half of fiscal 2027 has been reached: USCIS stopped accepting new cap-subject petitions with start dates before April 1, 2027 after September 4, 2026.

This page is for agencies deciding whether H-2B can work for a client's seasonal or event-driven need, and for the client HR teams that will co-sign. For the documents H-2B workers show at hire, see Form I-9 for seasonal and returning workers; for shared liability in general, see joint employer liability for staffing agencies; for state licensing of the agency itself, see employment agency license requirements.

Can a staffing agency use the H-2B program?

Yes, as a job contractor. Section 655.5 defines a job contractor as an employer that contracts services or labor on a temporary basis to other employers that are not its affiliates, and that "will not exercise substantial, direct day-to-day supervision and control" over the work beyond hiring, paying and firing. The client is the "employer-client." Section 655.19 then sets the filing rules:

• Joint employers only. The agency may file on behalf of itself and a client only if they are joint employers (655.19(a)).
• One contract, one application. The agency needs a separate contract with each client, and each contract supports only one application per client job opportunity in one area of intended employment (655.19(b)).
• Both sign. The ETA Form 9142B must identify both employers and the actual worksite, carry both signatures and include the contract; each signer "assumes full responsibility" for the employer's duties (655.19(d)).
• Shared recruitment. Either party may place the job order, recruit and interview, but both sign the recruitment report, and ads must name both employers and the worksites (655.19(e)).
• Wages. Either may request the prevailing wage determination, but each is separately responsible for paying at least that wage (655.19(c)).

Whose temporary need counts?

The need for the workers must be temporary even if the job itself is permanent. DHS's regulation recognizes four kinds of need, which USCIS's H-2B page explains: a one-time occurrence, a seasonal need tied to a season by an event or pattern and of a recurring nature, a peakload need, and an intermittent need. Section 655.6(c) narrows this for agencies: a job contractor "will only be permitted to seek certification if it can demonstrate through documentation its own temporary need, not that of its employer-client(s)," and only on a seasonal or one-time basis. A client's peakload need does not qualify an agency.

Section 655.6(b) limits non-one-time needs to nine months, but Congress has overridden that through the Labor Department's funding laws. The text in the Further Consolidated Appropriations Act, 2024 (Pub. L. 118-47, Div. D, Title I, sec. 111) says "the definition of temporary need shall be that provided in 8 CFR 214.2(h)(6)(ii)(B)," which is generally one year or less, or up to three years for a one-time event. The rider does not mention job contractors, so ask counsel how the Labor Department is applying 655.6(c) to your filing, and confirm the provision is in the appropriations law in force when you file.

What does the agency owe H-2B workers?

Two funding notes. Section 111 of the same 2024 act bars the Labor Department from using its funds to enforce the three-fourths guarantee and the definition of "corresponding employment," and section 110 sets how the H-2B prevailing wage is determined, including private wage surveys. The Wage and Hour Division's Fact Sheet 78E says those regulatory provisions "remain in effect, thus imposing a legal duty on H-2B employers." Plan to honor the guarantee.

What is the timeline, and what about the cap?

1. Prevailing wage: request it from the National Prevailing Wage Center at least 60 calendar days before you need it (Labor Department H-2B page).
2. Job order and application: file the job order with the state workforce agency and the ETA Form 9142B with the National Processing Center 75 to 90 days before the date of need.
3. U.S. recruitment: recruit as the job order requires, and keep hiring qualified U.S. applicants until 21 days before the date of need (655.20(t)).
4. USCIS petition: after certification, file Form I-129 (09/09/26 edition from November 9, 2026) with the certification's one-page final determination; up to 25 named workers per petition.
5. Visa and entry: workers abroad apply at a U.S. consulate, then seek admission.

The cap is 66,000 a year, 33,000 for workers starting October 1 to March 31 and 33,000 for April 1 to September 30 (8 U.S.C. 1184(g)(1)(B)). USCIS's September 11, 2026 alert says the first-half fiscal 2027 cap was met with petitions received by September 4, 2026. The fiscal 2026 supplemental allocation of up to 64,716 visas (91 FR 5040) ended with that fiscal year on September 30, 2026. Other USCIS points: since January 17, 2025, H-2B petitions no longer depend on the worker's country being on an eligible list; the maximum stay is three years, reset by 60 days outside the U.S.; and Labor Department guidance, updated effective June 15, 2026, requires an English language proficiency standard for jobs that involve operating a commercial motor vehicle.

How do you recruit U.S. workers without discriminating?

Every qualification in the job order must be bona fide and normal for non-H-2B employers in the same occupation and area, and U.S. workers may not face stricter requirements than H-2B workers (655.20(e)). The employer must also contact its former U.S. workers in the occupation from the previous year and invite them back (655.20(w)). The Justice Department treats requirements designed to keep U.S. workers out as citizenship status discrimination: in July 2025 it settled with H2A Complete II, an agricultural employer and agent that added unjustified experience requirements to job orders so its clients could avoid hiring U.S. workers, for a $25,000 civil penalty (IER settlements). The same logic applies to H-2B job orders. See citizenship status discrimination in hiring, and for seasonal interviewing, interview guide for seasonal roles.

What does the client company take on?

• Full employer liability. By signing the application, the client independently attests to every H-2B condition and takes full responsibility for them (655.19(d)(2)).
• Site access. The petitioner and each employer consent to government access to worksites and records, and to worker interviews, as a condition of approval (214.2(h)(6)(i)(F)(2)).
• Fee exposure. USCIS denies or revokes petitions where the petitioner or its agents, or any employer or joint employer, collected prohibited fees, and then bars new H-2 petitions for a year, and three more years unless workers are reimbursed (USCIS H-2B page).
• Prior violations. Since January 17, 2025, USCIS may deny H-2B petitions from employers found to have committed certain labor law or H-2 program violations (214.2(h)(10)(v)).

Form I-9 and E-Verify for H-2B placements

USCIS's I-9 Central says that in most cases workers supplied by a staffing agency are the agency's employees, so the agency completes Form I-9 for them; confirm how your joint-employer contract allocates it. H-2B workers usually present a foreign passport with an I-94 showing H-2B status, a List A combination, and workers porting from another H-2B employer can start once the new petition is filed, with "H-2 Portability" noted on the form. Details are in Form I-9 for H-2A and H-2B workers, Form I-9 for staffing agencies and E-Verify for staffing agencies.

A pre-filing checklist for staffing agencies

1. Document your own seasonal or one-time need, separate from each client's.
2. Sign a separate contract with each client that addresses joint-employer duties, worksites and costs.
3. Confirm the client will co-sign the application and the recruitment report and accept full responsibility.
4. Budget the offered wage, the three-fourths guarantee, travel both ways, visa fees and tools.
5. Put the no-fee clause in every foreign recruiter contract and collect the agreements for filing.
6. Check every job requirement against what non-H-2B employers in the area ask for.
7. Track the 60-day, 75-to-90-day and 21-day dates, and the cap dates, on one calendar.
8. Set up the 2-workday separation notices to both the Labor Department and USCIS.