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.On April 1, 2006, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning April 1, 2006 for workers seeking work start dates as early as October 1, 2006. Although USCIS regulations allow for filings 6 months in advance, 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 files more than 120 days in advance of the need the the employee to ensure the accuracy of the labor market test.

What is the H-2B numerical limit set by Congress? The H-2B numerical limit set by Congress per fiscal year is 66,000. However, aliens who are eligible for H-2B status as “returning workers” do not count against the annual numerical cap. USCIS notes that the “returning worker” provisions of the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) have been extended until September 30, 2007, which marks the end of FY 2007.   For FY 2007 all “returning workers,” means workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means that for a petition with a work start date after October 1, 2006 (FY 2007), the worker must have been previously approved for an H-2B work start date between October 1, 2003 and September 30, 2006. If a petition was approved only for “extension of 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 and, therefore, that particular approval cannot in itself result in the worker being considered a “returning worker” in a new petition. Any worker not certified as a “returning worker” will be subject to the numerical limitation for the relevant fiscal year. 

Why does USCIS authorize more H-2B workers than the statutory limit? Employers often decide after submitting an H-2B petition that the workers are no longer needed. In other instances, some aliens never appear at the consular post for their visa interview following petition approval. However, USCIS still processes these petitions (notification from employers that workers are no longer needed is rare) and sends the approved petitions to the Department of State (DOS) for consular processing. If the employers no longer request these workers, DOS will not issue visas for these workers. As a result, the number of potential H-2B workers authorized to work by USCIS will often exceed the actual number of visas issued based on petition approvals—the basis of the statutory limit. Another factor is that DOS denies some visa applications even though USCIS has approved petitions for these workers.

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