The H-2B visa program allows US employers to anticipate the lack of nonagricultural employers in several segments and ensure a constant influx of available workers from eligible countries. In this article, you will understand how the H2B visa program cap works.
Understanding the H2B Visa Program – Rules and Requirements
Under the H-2B program, US employers or authorized agents who meet specific regulatory requirements can bring foreign nationals to the United States to fill temporary employment gaps.
As prospective workers can apply for themselves, a US employer must file a petition on their behalf. Additionally, H-2B employers must obtain a valid temporary labor certification issued by the US Department of Labor (DOL).
The basic requirements for US petitioners to qualify for H-2B nonimmigrant classification include:
- Demonstrating that not sufficient domestic workers are able, willing, qualified, and available to fill the job offers
- Demonstrating that the employment of foreign workers will negatively adversely affect the wages and working conditions of similarly employed domestic workers.
- Showing that the need for prospective workers is temporary (whether the underlying job can be described as temporary or not)
The United States Citizenship and Immigration Services (USCIS) must determine whether the employer’s need is actually temporary. A petitioner’s need is only temporary if it is a one-time occurrence, a seasonal need, a peak-load need, or an intermittent need.
How Does the H2B Visa Program Cap Work? – Taking a Closer Look
The number of H-2B visas issued each fiscal year is limited to a fixed statutory cap. As of 2022, US Congress determined that the H-2B annual cap is 66,000 visas per fiscal year. This total is divided into two parts.
The first part (33,000 visas) is granted to workers who begin employment in the first half of the fiscal year (October 1 – March 31). The second part (33,000 visas) is granted for workers who begin employment in the second half of the fiscal year (April 1 – September 30).
Please note that any unused numbers from the first half of the fiscal year are “recycled” in the next semester. This way, the unused numbers are available for H-2B employers seeking to hire foreign workers during the second half of the fiscal year.
If there are unused H-2B numbers from one fiscal year, these numbers are not carried over into the next fiscal year. Once the total cap of H-2B visas is reached, USCIS may only accept petitions for workers who meet the H-2B cap exemption requirements.
Consult with an expert immigration attorney to identify whether the H-2B cap exemption applies to your case.
How Does the H2B Visa Program Cap Work? – 2022 Temporary Final Rule
On January 28, 2022, the US Department of Homeland Security and the US Department of Labor (DOL) published a joint temporary final rule increasing the H-2B cap by up to 20,000 additional visas during the fiscal year 2022.
The temporary rules applied for temporary employment positions with start dates on or before March 31, 2022. With the additional visas, the federal government helped US businesses at risk of impending irreparable harm if they could not employ all the H-2B workers requested in their petitions.
On April 1, 2022, USCIS determined that cap-subject petitions under the temporary rule with start dates on or before March 31, 2022, will not be accepted any longer.