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USCIS H-2B Count for the Second Half of Fiscal Year 2009

November 24, 2008


What is a "Cap?"


The word "Cap" used in this Update refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.


The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.


The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. USCIS regulations allow for filings 6 months in advance. However, H-2B petitioners first must obtain a temporary labor certification from the Department of Labor (DOL). DOL regulations stipulate that the application for temporary labor certification may not be filed more than 120 days in advance of the need for the employee to ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving H-2B petitions with employment start dates in October in June or July.


What is the H-2B numerical limit set by Congress?


The H-2B numerical limit set by Congress per fiscal year is 66,000. USCIS notes that, as of June 18, 2008, Congress has not amended the "returning worker" provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) to cover FY 2009 (before October 1, 2007, if a petition was approved only for the purpose of extending an alien's stay in H-2B status, or only for change or addition of employers or a change in the terms of employment, the worker was not counted against the numerical limit at that time). An alien who changes nonimmigrant status to H-2B is counted against the annual H-2B cap.


  Cap Beneficiaries Approved Beneficiaries Pending Beneficiaries Target1 Total Date of Last Count
H-2B 1st Half 33,000 ------ ------ ------ Cap Reached 29 July 2008
2nd Half
33,0002 4,663 5,602 50,000 10,265 21 November 2008
H-2B Annual
(FY 09)
66,0003 ------ ------ ------ ------ ------


1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.

2 A shortfall in the 1st half would be made up in the 2nd half.

3 Visas issued plus beneficiaries changing status already in the United States.



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