H-2B Visas No Longer Available

The United States Citizenship and Immigration Services (USCIS) announced on July 30 that the H-2B cap for the first half of the 2009 fiscal year has been reached.

This means that new petitions received on or after July 30 would be rejected.

As in the case of H1B petitions, there is an annual limit of 66,000. One half or 33,000 are allotted for the first half of the fiscal year and the remaining numbers are reserved for the second half. The fiscal year starts on October 1.

All new petitions received on July 29, 2008 will be subject to a computer-generated random selection process. Those not chosen will be rejected and their filing fees returned.

H-2B extensions or those petitions seeking to change the terms of employment or to change or add employers and extend their stay are not subject to the cap and the USCIS will continue to process them.

H-2B visas are reserved for non-agricultural workers who enter the U.S. to perform temporary services for an employer on a one-time, seasonal, peak load or intermittent basis. The temporariness of the job is determined by the nature of the need of the employer, not the nature of the duties.

The H-2B process starts with the filing of a temporary labor certification (ETA Form 750 Part A) with the local State Workforce Agency (SWA) not more than 120 days prior to the employer’s needs.

After review, the SWA will forward the ETA Form 750 A to the National Processing Center where a final determination will be made.

A labor certification is issued when the Department of Labor (DOL) finds that there are no U.S. qualified workers for the job and that similarly situated workers will not be adversely affected by the hiring of foreign workers.

The approved labor certification or the DOL statement of no certification is then attached to the I-129 petition that is submitted to the USCIS.

A labor certification does not guarantee the approval of the H-2B petition. On the other hand, a negative decision on the labor certification application does not automatically result in a denial of the petition.

Multiple beneficiaries may be included in a single H-2B petition if they will be performing the same work for the same period in the same location.

The H-2B worker is allowed a maximum of not more than a year. In extraordinary cases, two one-year extensions may be allowed.

Unlike in H-1B cases, the filing of an immigrant visa petition or permanent labor certification is not allowed for H-2B workers. The rule cannot be circumvented by the filing for permanent resident status on behalf of the alien in a different job.