The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of January 4, 2013, it has received 22,769 petitions for temporary workers under the H-2B nonimmigrant visa program. This number counts toward the 33,000 H-2B cap for the first half of FY2013, which ends March 31.  Of this number, 18,996 are approved and 3,773 are pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.  Before requesting H-2B classification from the USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor.

The cap for H-2B visas is set by Congress at 66,000 per fiscal year, 33,000 are allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and 33,000 are allocated for employment beginning in the 2nd half (April 1 – September 30).  Any unused numbers from the first half are rolled over for use during the second half of the year.  However, unused H-2B numbers are not carried over from one fiscal year to the next.

Employers should consider filing H-2B petitions before the cap for the first half of the fiscal year is reached.  Current holders of H-2B visas are not affected by the cap. USCIS will continue to process petitions to:

• Extend the stay of current H-2B holders
• Hire roe processors, fish roe technicians and/or supervisors of fish roe processing
• Hire H-2B workers in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam (provision will sunset on December 31, 2014)

Employers also should initiate the labor application process for the second half of the year now.

Employers may continue to file H-2B applications under the 2008 H-2B Rule until DOL’s 2012 H-2B Final Rule takes effect.  The 2012 H-2B Final Rule, published on February 21, 2012, would have taken effect on April 23, 2012, but was enjoined by a district court on April 26, 2012 (Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, 3:12-cv-00183 (MCK-CJK)).  The 2012 H-2B Final Rule would have significantly changed the H-2B visa program by imposing onerous and costly new conditions and requirements on H-2B employers.

The preliminary injunction raised doubts about the DOL’s underlying authority with respect to the H-2B program and DOL advised employers to continue to “file H–2B labor certification applications under the 2008 H–2B Rule, using those procedures and forms associated with the 2008 H–2B Rule for which the Department has received an emergency extension under the Paperwork Reduction Act.”  The agency acknowledged the doubts by stating, “…please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and DHS’s regulations to issue the labor certifications that are a necessary predicate for the admission of H–2B workers.”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice Group.