Monday, June 29, 2015

USCIS to Reopen H-2B Cap for the Second Half of Fiscal Year 2015

From USCIS: On June 5, 2015, USCIS will reopen the congressionally mandated fiscal year (FY) 2015 cap and will accept Form I-129, Petition for a Nonimmigrant Worker, requesting new H-2B workers with an employment start date between April 1 and September 30, 2015.

Why USCIS is Reopening the 2nd half FY 2015 Cap for H-2B Petitions
USCIS’s role in managing the H-2B cap involves ensuring that enough Form I-129 H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. It can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa by the Department of State (DOS). USCIS strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached.

On April 2, 2015, USCIS announced it accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000 H-2B visas. USCIS considers numerous factors when determining how many petitions and beneficiaries to accept to fully utilize the H-2B cap. From June 3, 2014 through March 26, 2015, USCIS accepted about 3,900 petitions (consisting of about 77,000 beneficiaries) towards the H-2B FY15 cap.  USCIS believed this was sufficient to fully utilize the FY15 cap.

USCIS continues to work in collaboration with DOS to monitor the issuance of H-2B visas and has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas.  A recent analysis of DOS H-2B visa issuance and USCIS petition data reveals that the number of actual H-2B visas issued by DOS is substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS has determined that there are still available H-2B visa numbers remaining for the second half of the FY15 cap.

Filing Procedures
On June 5, 2015, USCIS will begin to accept additional FY15 cap petitions with employment start dates between April 1 and September 30, 2015, and will consider them in the order in which USCIS receives them.
To petition for an FY15 H-2B cap number, employers must:
  • Submit Form I-129, Petition for a Nonimmigrant Worker, with all required documents, including an approved Temporary Labor Certification (TLC) from the Department of Labor that is valid for the entire employment period stated on the petition.
  • Indicate an employment start date between April 1 and September 30, 2015. 
Important Filing Information

Under 8 CFR 214.2(h)(6)(iv)(D), the employment start date listed on the petition must be the same as the employment start date authorized on the TLC unless a petitioner is filing an amended H-2B petition due to the unavailability of originally requested workers as stated on the previously approved TLC. Petitioners may still use TLCs for which the employment start date occurred on or after April 1, 2015, even if the start date occurred during the closure of the FY15 H-2B cap.  Such TLC, however, must still be otherwise valid, and the employment start date on the petition must match the employment start date authorized on the TLC.  Petitions with employment start dates that do NOT match their TLCs’ employment start dates will be rejected and returned with fees.

Please note: USCIS will consider petitions received on or after Oct. 1, 2015, and/or requesting a start date on or after Oct. 1, 2015, towards the FY16 H-2B cap. These petitions will be subject to all eligibility requirements for FY16 H-2B cap filings. USCIS started accepting FY16 H-2B cap petitions on June 3, 2015.

The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers.  Learn more about the program on our H-2B Temporary Non-Agricultural Workers Web page.

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