H-2B to PERM Part 1: Why Some H-2B Employers Are Done Gambling on the Cap Every Year

Every spring, I have a version of the same conversation with H-2B employers.

The season just ended. Workers went home. Some employers got everyone they needed. Some got half. Some got none. And somewhere in the debrief, the question surfaces: is there a better long-term answer than doing this exact same thing again next year?

The H-2B program is indispensable for a lot of seasonal/peakload businesses. I've built my practice around it. But it has a structural problem that no amount of good lawyering fully solves: it resets every year. Every season, you go back into the lottery. Every season, the cap may or may not accommodate you. Every season, a consulate you don't control decides whether your workers get a visa in time for your start date.

Start dates are rarely met on time. Some years, workers don't arrive at all. The program does not run on your schedule — your business has to run on the program's schedule. That is a real operational risk, and the employers who have been doing this long enough know exactly what a bad cap year costs.

This series is about a parallel strategy worth understanding: the PERM labor certification process and the EB-3 employment-based green card category. Not as a replacement for H-2B — for most employers doing both, H-2B remains the primary seasonal staffing tool throughout the process and thereafter*. But as a long-term complement to it.

The way I explain it to clients: H-2B is your growth engine. It brings in workers, expands your capacity, and keeps your seasonal operation running. PERM is your maintenance foundation. It converts your most reliable, experienced workers — the ones who have come back year after year, who know the job, who you've invested in — into permanent employees whose status isn't subject to a lottery, a cap, or a consular backlog.

Used together, they give you something most seasonal employers never have: a workforce strategy that compounds year over year instead of starting from scratch every fall.

This series walks through the PERM and EB-3 process for employers who come from an H-2B background. What it is, how it works, what the realistic timeline looks like, and how to run both programs without jeopardizing either. It is written for employers, not attorneys — plain language, practical framing, real considerations from real cases.

Part 2 covers how PERM actually works. If long-term workforce stability is something you are actively thinking about, this series is worth your time.

Meagan Kirchner, Esq. is an immigration attorney and the founder of Kirchner Law PLLC (Kirchner Immigration), a Virginia-based firm providing national H-2B and EB-3 visa legal services. With over a decade of experience in complex business immigration, she has helped hundreds of employers navigate the H-2B temporary worker visa program from petition through worker arrival.

*This strategy is viable for companies with peakload need. The EB-3 is a permanent year-round position not part-time/seasonal.

**This article is provided for general informational and educational purposes only and does not constitute legal advice. Reading or interacting with this post does not create an attorney-client relationship. Immigration outcomes depend on individual facts, timing, and government action; nothing in this article should be interpreted as a guarantee of any result.