H2B Cap is Reached for Second Half of FY2009

The U.S. Citizenship and Immigration Services (USCIS) recently announced that a sufficient number of H2B filings has been received for the second half of Fiscal Year (FY) 2009. As long-time MurthyDotCom and MurthyBulletin readers may recall from articles including, Overview: H2B Temporary Workers (Sep 14, 2001), a U.S. employer in an industry with peak load, seasonal, or intermittent needs is allowed through the H2B visa category to augment its existing labor force with temporary workers. In addition, a U.S. employer may use the H2B if there is a one-time occurrence that necessitates a temporary increase in workers. This should not be confused with the H1B category for temporary professional workers, which is more familiar to most of our readers.

Temporary Labor Certification Needed

Prior to filing an H2B petition, an employer must obtain a temporary labor certification from the U.S. Department of Labor. This may not be filed more than 120 days in advance of the need for the employee/s. Thus, because of this restriction, the timing and availability of the limited H2B numbers is important for employers utilizing this category.

Numerical Limitations in H2B Visa Category

The H2B numerical limitation, often referred to as the “cap,” has been set by Congress at 66,000 per year. In an effort to make the category available for longer periods during the year, during each season, this cap is divided into two halves. If a petition is approved for the purpose of extending a foreign national’s H2B status, or for a change or addition of employers or a change in the terms of employment, then the foreign worker is not counted against the H2B cap. A worker who changes nonimmigrant status to H2B generally is counted against the H2B numerical limitation.

The cap of 33,000 H2B visas for the first half of FY2009 was reached on July 29, 2008 with a start date of employment no earlier than October 1, 2008. The cap for the second half of FY2009 was reached on January 7, 2009. The fiscal year FY2010 begins October 1, 2009.

Conclusion

The H2B category is a useful option for certain seasonal or temporary workers in occupational areas such as construction, healthcare, landscaping, lumber, manufacturing, food service / processing, and resort / hospitality services. However, timing is key due to the annual cap. Since the cap has already been reached for the second half of FY2009, employers considering this category will have to wait for their workers until October 1, 2009. They must first obtain a labor certification approval, however, as well as an H2B petition approval. Thus, in order to engage in the necessary advance planning, preparation, and filings, it is important to consult with a qualified immigration attorney well before October 1, 2009.