H-2B News: Cap Count and Proposed Regulations

U.S. Citizenship and Immigration Services (USCIS) updated its “cap count” for H-2B petitions on July 17 to show that 23,589 of the target 40,000 beneficiaries for the first half of Fiscal Year 2009 had been approved or requested.  The H-2B visa category allows U.S. employers in an industry with a seasonal, peakload or intermittent need (or any employer with a “one-time” need) to augment their regular workforce with temporary workers.  The H-2B process includes a temporary labor certification, a process whereby the employer must recruit for U.S. workers and, if unsuccessful in locating qualified U.S. workers, can then sponsor foreign national beneficiaries for H-2B status.  H-2Bs are commonly used in construction, manufacturing, food service and resort/hospitality industries.

The annual numerical limit for H-2Bs is 66,000 and USCIS splits the Fiscal Year into halves, each half being allocated 33,000 H-2B beneficiaries.  USCIS accepts requests for 40,000 H-2B beneficiaries per half, providing a 7,000 beneficiary allowance for withdrawals, denials and revocations.  Similar to the H-1B cap, the H-2B cap has proven to be far lower than employer demand, with Fiscal Year 2008’s second half cap allocation (covering the period from April 1, 2008 to September 30, 2008) being reached on January 2, 2008.  For a report on the current cap usage, visit USCIS’ website.  

In other H-2B news, the U.S. Department of Labor (DOL) recently proposed a rule that would re-engineer the application filing and review of H-2B temporary labor certifications along the lines of the current PERM permanent labor certification program.  Specifically, the proposed H-2B process would centralize processing and allow employers to conduct pre-filing United States (U.S.) worker recruitment activities.  The proposed rule makes changes designed to enhance the integrity of the program through the introduction of post-adjudication audits and employer penalty processes for program violations.  The DOL’s press release discusses this development in more detail. 

Note: This article was published in the July 2008 issue of the Immigration eAuthority.