H2 Visa Holder Rights & Responsibilities

Did you know that Mexico sends more H-2B workers to the U.S. than any other country in the world?  Of these workers, a significant number are residents of the El Bajio region of Mexico, with a particular concentration in the State of Michoacan. 

If you’re an H2 worker, a family member or friend of an H2 worker or are an employer of H2 workers, please review the following article for details on both the rights and the responsibilities of H2 workers in the United States.

What are H2 visas?  H2 Visas, or temporary worker visas, are visas that allow skilled or unskilled laborers (not professional or degreed workers) to work in the US on a temporary or seasonal basis.  H-2A jobs are agricultural in nature while H-2B jobs are typically in such industries as landscaping, seasonal hospitality, seasonal construction, manufacturing, food packaging and processing, fisheries, retail and other industries. 

First, what are your rights as an H2 visa holder? 

1. H-2B workers are entitled to the same legal rights as American employees including, but not limited to, minimum wage, workman’s compensation, and freedom from discrimination on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, or marital status.

2. H-2B workers must always be permitted to return to Mexico, regardless of when the contract ends. If the worker is ill, has a family emergency, or would like to resign, he/she may leave the worksite and come directly back to Mexico.  The worker may not work for a different company. 

3. Employers, petitioners, recruiters, representatives, majordomos, managers, crew leaders, etc. may NOT keep workers’ passports.  The employer should provide a secure location in the workers’ quarters to store their documents.  The worker should ALWAYS be in possession of or have immediate access to their passport.

4. H2 visas are "multiple entry" visas.  This means the worker may come back to Mexico for a short time to visit family or take care of necessary business, etc. and then return to the U.S. to continue the job.  

5. H-2A workers (this does NOT apply to H-2B workers) are entitled to the Adverse Effect Wage rate, which is higher than the state minimum wage.  They are also entitled to be paid for ¾ of the hours promised for the duration of the contract whether or not work is available as well as free housing and transportation to and from the worksite from their residence abroad.

What are your responsibilities as an H2 visa holder?

1. H2 visas are only valid for the company named on the visa.  It is not legal for a worker to switch from one company to another without written permission from the Department of Homeland Security.  Please note that the worker may not switch employers or work for another company if there is not enough work at the original employer.  If there is not enough work, the employer should contact the Department of Homeland Security or have the worker return to Mexico and apply for a new visa for a new worksite. 

2. The expiration date on the visa is the date when the worker needs to leave the U.S.  H2 workers are allowed a window of 10 days to arrange their affairs and travel back to Mexico once the visa has expired. This is NOT 10 extra days of work time. 

Extensions are available from the Department of Homeland Security for H2 visas. The employer/petitioner must apply for an extension of the petition BEFORE it expires. Applicants who received extensions do not need a new visa if they remain in the U.S. However, if they return to Mexico, they will need to apply for a new visa to re-enter the U.S.

3. H2 workers MUST return the I-94 form at the border when returning to Mexico once the work time has ended. This is how the worker proves that he/she did not overstay in the U.S.

4. Each worker should make a photocopy of their passport information page and visa and carry it separately from the passport.  If the visa is lost or stolen, this can help in getting a replacement.