The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of November 8, 2013, the agency receipted applications for 9,078 beneficiaries toward the 33,000 H-2B cap amount for the first half of FY2014.  This count includes 7,478 approved and 1,600 pending beneficiaries.

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 USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

The cap (numerical limit) for H-2B visas is set by Congress at 66,000 per fiscal year.  The number is divided equally: 33,000 to be allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and the remaining 33,000 to be allocated for employment beginning in the second half (April 1 – September 30).  Any unused numbers from the first half of the fiscal year are rolled over for use during the second half.  However, there is no carryover of unused H-2B numbers from one fiscal year to the next.

Employers are therefore reminded to file H-2B petitions before the H-2B 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 should also initiate the labor application process for the second half of 2014.  While they cannot file until at least 120 days before the date of need, presumably April 1, 2014, they can request DOL prevailing wage determinations at this time.  The entire H-2B application process is as follows:

  1. Obtain a prevailing wage determination from the DOL.
  2. Begin the pre-filing recruitment no more than 120 days before the employer’s date of need.
  3. Prepare a recruitment report once the pre-filing recruitment process is completed.
  4. File the labor application with DOL on Form ETA 9142.
  5. Upon receiving DOL labor certification, file I-129 petition with USCIS.  Standard processing time is approximately two months, although 15-day expedited service is available at an additional fee.  Current USCIS regulations permit the filing of a petition for unnamed beneficiaries.
  6. Once USCIS approves the H-2B petition, workers outside the U.S. must apply for a visa at a U.S. Embassy/Consulate before traveling to the U.S. to begin work.  Employers  may recruit workers only from designated countries.  On the other hand, workers already present in the U.S. must be identified on the I-129 petition filed with USCIS.

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.