On March 1, 2022, Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Services (“USCIS”) announced that as of February 25, 2022, it has received enough petitions to fill the 33,000 H-2B visas available for the second half of fiscal year 2022. Cap-subject H-2B petitions requesting employment dates of April 1, 2022 or later will now be rejected by USCIS.
Now that the H-2B cap is reached, USCIS continues to accept H-2B petitions under the following qualifications:
1. H-2B petitions for cap-exempt beneficiaries, which includes:
- Change of employer petitions with request to extend stay in H-2B status;
- Out-of-country petitions for beneficiaries who have already been counted against the 66,000 H-2B Congressional limit for FY2022; and
- Petitions for workers in the fish roe processing industry and labor services in the Commonwealth of Northern Mariana Islands or Guam.
2. H-2B petitions requesting employment dates of March 31, 2022 and earlier. On January 28, 2022, the first FY2022 H-2B cap was increased by 20,000 additional H-2B visas. This earlier supplemental cap has not been reached to date and USCIS continues to accept petitions filed for positions with start dates on or before March 31, 2022. Employers with start dates of April 1, 2022 are not eligible to apply under this supplemental cap.
As evidenced by the supplemental visas issued on January 28, 2022 for the first fiscal year H-2B cap, DHS recognizes the dire labor shortages at a time of historic national economic recovery. Our firm anticipates that DHS will issue additional H-2B visas by early summer 2022 for U.S. employers seeking to employ workers for positions with start dates of April 1, 2022 or later. DHS will issue a public notice several weeks ahead of making the additional visas available, and we anticipate this announcement by late April 2022. Based the current labor shortage as well as historical records, the second fiscal year H-2B cap will be increased by an estimated 20,000 to 30,000 visas and be limited to returning workers who have held H-2B status in the past three fiscal years. A portion of the visa allotment may also be reserved specifically for nationals of the Northern Triangle countries (Honduras, El Salvador, and Guatemala). Further, an employer petitioning under the supplemental cap will likely have to attest that it will suffer severe financial loss without its requested H-2B workers.
For those seasonal employers who were not accepted under the second H-2B cap, we encourage you to continue with the Department of Labor processing of your temporary labor applications so that certifications are ready for DHS petition filing as soon as the supplemental visas become available for start dates of April 1, 2022 and later, or in case you are able to recruit in-country (cap-exempt) workers.
Should you have any questions, please do not hesitate to contact our office.
