H-2A, H-2B and PERM: How Employers Can Build a Short-Term and Long-Term Immigration Workforce Strategy

For employers that rely on seasonal or temporary foreign labor, immigration planning often begins with an immediate operational question: how do we staff the next season? H-2A and H-2B can answer that question when the employer has a qualifying temporary need. But businesses that return to the same labor problem year after year often have a second question that deserves equal attention: which positions and workers should become part of the company’s permanent workforce?

That is where PERM can fit into the strategy. An employer may continue using H-2A or H-2B for legitimate temporary or seasonal labor needs while separately pursuing permanent labor certification for a bona fide, full-time permanent position. In practical terms, the employer can address the short-term workforce problem and the long-term workforce problem at the same time.

This is not a simple “conversion” from an H-2 visa to a green card. H-2 classifications are based on temporary need, while PERM is built around permanent full-time employment. The employer must explain why both needs exist, and the worker should be screened for the entire permanent-residence process before significant time and money are invested.

When those pieces fit, however, H-2 plus PERM can become a powerful workforce-planning model for farms, landscaping companies, manufacturers, hospitality businesses, seafood processors, quarries, and other employers that depend on recurring labor.

When H-2A helps: Temporary and seasonal agricultural labor

The H-2A temporary agricultural program allows agricultural employers that anticipate a shortage of available U.S. workers to bring foreign workers to the United States for temporary or seasonal agricultural labor or services.

The Department of Labor explains that seasonal employment is tied to a certain time of year by an event or pattern and requires labor above what is necessary for ongoing operations. Temporary need generally lasts no longer than one year, except in extraordinary circumstances.

That framework makes the H-2A useful for farms with predictable labor peaks. A crop operation may need additional people during planting or harvest, while a livestock or dairy operation may have defined periods when labor needs rise because of seasonal management practices. The important point is that the H-2A is designed around a temporary agricultural need, not simply around the fact that the employer is a farm.

When H-2B helps: Temporary nonagricultural labor

The H-2B serves a similar function outside agriculture. The H-2B temporary nonagricultural program allows qualifying U.S. employers to hire foreign workers for temporary nonagricultural labor or services. Temporary need can generally be based on a one-time occurrence, seasonal need, peakload need, or intermittent need.

This can help landscaping companies, hospitality businesses, seafood processors, manufacturers, construction-related employers, and other businesses whose staffing needs rise sharply for a defined period. A manufacturer, for example, may have a stable permanent production staff but need additional line workers for several months because of a genuine peak in orders. The Department of Labor’s H-2B employer guidance also makes clear that the job opportunity must be a bona fide, full-time temporary position.

PERM solves a different, permanent workforce problem

The PERM permanent labor certification program is designed for permanent employment. Before most employment-based immigrant petitions can be filed with USCIS, the Department of Labor must certify that there are not sufficient able, willing, qualified, and available U.S. workers for the permanent job opportunity and that employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

The process generally begins with a prevailing wage determination, followed by required recruitment and notice, submission of the PERM application, and, if certified, an I-140 immigrant petition with USCIS. DOL specifically describes PERM as a process for a permanent full-time job opportunity, which is why the permanent position must stand on its own rather than simply mirror a temporary H-2 job.

For many H-2 workers, the eventual immigrant classification may fall within EB-3. USCIS explains that EB-3 includes “Other Workers”, meaning workers capable of performing permanent, nonseasonal labor requiring less than two years of training or experience. That can make the category relevant to employers that want to retain experienced manual laborers who may not have college degrees but have become valuable long-term employees.

Short-term H-2 and long-term PERM strategies can run in parallel

The most useful way to think about H-2 and PERM is as two tracks. H-2 addresses a qualifying temporary or seasonal need. PERM addresses a separate permanent position that the employer expects to exist into the future.

Consider a landscaping company that brings in H-2B workers every spring and summer. Most of those positions may remain genuinely seasonal. But as the company expands, it may develop year-round needs for crew leaders, mechanics, equipment specialists, shop employees, or supervisors. Those permanent positions may qualify for PERM even as the company continues using H-2B for its larger seasonal workforce.

The employer has to be able to explain the difference between the temporary need and the permanent opportunity. PERM should not be used simply to relabel a seasonal H-2 position as permanent. Indeed, the EB-3 statutory framework requires qualifying employment to be permanent, not temporary or seasonal.

Conversely, an employer should not continue characterizing a position as temporary if the operational facts now show the business requires it year-round. Businesses change. They add locations, expand production, acquire new equipment, and develop permanent staffing needs that did not exist when they first entered an H-2 program.

The goal is not to force one immigration strategy to do two jobs. It is to identify which portion of the company’s workforce need is legitimately temporary and which portion has become permanent, then use the appropriate immigration process for each.

The green card case should be evaluated before PERM starts

One of the biggest mistakes an employer can make is treating PERM certification as the finish line. It is only the first major stage of a longer permanent-residence process.

Before beginning PERM for an H-2 worker, immigration counsel should evaluate whether the worker has a realistic path to permanent residence. That means reviewing prior entries and exits, periods of unlawful presence, unauthorized employment, status violations, removal history, prior petitions, possible inadmissibility issues, and whether the worker is likely to complete the case through adjustment of status in the United States or immigrant visa processing abroad.

This becomes especially important because employment-based green-card cases can take years. The September 2026 Visa Bulletin, for example, listed an April 1, 2022 Final Action Date for EB-3 Other Workers for most countries, with earlier dates for China, India, and the Philippines. The same Visa Bulletin confirms that no more than 10,000 visas from the broader EB-3 allocation may be used for Other Workers.

Those dates will change, and a current Visa Bulletin should always be reviewed for an individual case. But the backlog illustrates the larger planning issue: an employer that waits until it urgently needs an employee to become permanent may already be years behind.

Early screening turns some of that waiting period into planning time. If a problem is identified early, the employer and worker can understand the risk and decide whether a viable strategy exists before years of PERM and I-140 processing have passed.

Does starting PERM prevent a worker from continuing in H-2 status?

Not automatically.

Federal regulations state that approving a permanent labor certification, filing an immigrant petition, or filing an application seeking permanent residence does not, on its own, require denial of an H-2 petition, extension, change of status, or application for admission.

The regulation also says immigration authorities may still consider those immigrant filings alongside the rest of the facts when evaluating whether the worker continues to maintain H-2 status and a foreign residence the worker has no intention of abandoning.

That distinction matters because H-2A and H-2B are not classic dual-intent classifications like H-1B and L-1. Employers and workers therefore need to coordinate visa applications, travel, admission, extensions, and permanent-residence filings carefully.

The ability to pursue PERM without automatically destroying H-2 eligibility is what can make the parallel strategy workable. The worker may continue addressing the employer’s legitimate temporary need while a separate permanent case develops, as long as each process remains independently supportable.

PERM recruitment must remain a genuine labor market test

An employer may already know and value the H-2 worker it hopes to sponsor, but PERM is still a labor-market process. The permanent position must reflect the employer’s actual minimum requirements, and the employer must complete the required recruitment in good faith.

The Department of Labor’s PERM process requires employers to identify the permanent full-time job opportunity, obtain a prevailing wage determination, complete the applicable recruitment and notice requirements, and then submit the labor certification application. Even if an employer already has a preferred employee, those requirements remain.

Employers should also budget correctly. Under 20 CFR § 656.12, an employer generally may not seek or receive payment from the foreign worker for activities related to obtaining permanent labor certification, including the employer’s attorney fees. If the same attorney represents both the employer and employee in connection with the labor certification, those costs must be borne by the employer.

That makes PERM more than simply another filing. It is a deliberate employer investment in a long-term position and, potentially, in an employee whom the business hopes to retain permanently.

Which employers should consider an H-2 + PERM strategy?

An H-2 plus PERM strategy is most useful for employers with a genuine, recurring temporary workforce need who also know part of their business requires stable, permanent staffing.

It can be especially valuable when the employer has used H-2A for several seasons and has identified employees it wants to retain for bona fide year-round positions.

Agricultural employers using H-2A

Farms and other agricultural businesses may use H-2A for legitimate seasonal labor while maintaining permanent roles elsewhere in the operation. As a farm grows, diversifies, or adopts more complex equipment and production systems, permanent positions can emerge that deserve a separate PERM analysis.

Landscaping, hospitality and other H-2B employers

Businesses using H-2B often repeat the same hiring cycle each year. If the operation evolves to require permanent supervisors, mechanics, production employees, managers, or other year-round workers, evaluate those jobs separately instead of assuming every foreign worker must remain temporary.

Manufacturers and other peakload businesses

Manufacturing offers a particularly clear example. A facility can have a permanent production staff, use H-2B to supplement that staff during a documented peakload period, and separately pursue PERM for genuine year-round positions. The short-term and long-term strategies are not inconsistent when the operational facts support both.

For all of these employers, the better question is not, “Can we get all of our H-2 workers green cards?” It is: which labor needs are truly temporary, which positions are genuinely permanent, and which workers have a realistic path to long-term sponsorship?

How Denizen Immigration helps employers build H-2A, H-2B, and PERM green card strategies

Denizen Immigration works with employers that rely on temporary and seasonal labor to evaluate both sides of their workforce needs: using H-2A and H-2B appropriately for qualifying short-term positions while determining when PERM or another employment-based green-card strategy may fit a permanent role.

That analysis can include reviewing a worker’s immigration history before starting PERM, identifying potential issues that could arise at adjustment of status or consular processing, planning around immigrant-visa backlogs, and coordinating temporary and permanent cases so the employer understands the likely path from the beginning rather than discovering a major obstacle several years into the process.

For employers that repeatedly bring back the same workers, or that are beginning to see temporary labor needs evolve alongside permanent year-round positions, looking at H-2 and PERM as parts of one broader workforce plan can reveal options that are easy to miss when every season is handled in isolation.

Schedule a free consultation with the Denizen Immigration team here.

FAQ: H-2A, H-2B and PERM Green Card Strategy

Can an H-2A or H-2B worker get a green card through PERM?

Potentially, yes. An employer may sponsor an H-2 worker for a bona fide permanent full-time position if the employer and worker satisfy the applicable requirements. USCIS specifically recognizes EB-3 Other Worker positions for permanent, nonseasonal labor requiring less than two years of training or experience.

Can H-2 and PERM cases be pending at the same time?

Yes, in appropriate circumstances. The H-2 regulations state that a permanent labor certification or immigrant petition does not, by itself, require denial of H-2 status. The worker must still independently satisfy the H-2 requirements.

Does an employer have to stop using H-2 once it begins PERM?

No. An employer may continue using H-2A or H-2B for qualifying temporary positions while pursuing PERM for a separate permanent job opportunity. Each program must accurately reflect the employer’s actual workforce need.

What is EB-3 Other Worker and why is it relevant to H-2 employees?

The EB-3 Other Worker classification covers qualifying permanent, nonseasonal labor requiring less than two years of training or experience. It can therefore be relevant to employers seeking to retain experienced manual laborers. The category is numerically limited and can experience significant visa backlogs.

Who pays for the PERM process?

Under 20 CFR § 656.12, the employer generally cannot require the worker to reimburse costs related to obtaining the permanent labor certification, including the employer’s attorney fees.

When should an H-2 employer begin thinking about PERM?

Ideally, before the need becomes urgent. Because PERM, I-140 processing, and immigrant-visa availability can take years, early planning gives the business more flexibility and lets it identify potential immigration issues before investing substantial resources.