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Good News From H2B Visa Front
By Wayne Pierce
We have noted several times the frustration generated because Citizenship & Immigration Services had abandoned its practice from prior years of posting on the internet the "cap count" that would allow all of us to know how many visas remain available for "new hires." At long last, CIS has finally re-implemented
its prior practice and for the first time this year has publicly posted how many visas have been issued toward the cap of 33,000 for the second half of this fiscal year.
Despite some doom-and-gloom predictions from knowledgeable sources that the cap for the second half of the year might be reached as early as mid-November, CIS has now confirmed that it has issued only 2,729 beneficiaries as of December 4, 2007, with another 4,435 beneficiaries currently pending. CIS also indicated that it has not determined how many beneficiaries it will ultimately approve beyond the 33,000 cap.
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.
The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual
numerical limitations of 66,000 into two halves. USCIS regulations allow for filings 6 months in
advance. However, 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 filed more than 120 days in advance of the need for the employee to
ensure the accuracy of the labor market test. Thus, USCIS normally begins receiving H-2B
petitions with employment start dates in October in June or July.
What is the H-2B numerical limit set by Congress?
The H-2B numerical limit set by Congress per fiscal year is 66,000. USCIS notes that, as of
October 1, 2007, Congress has not amended the "returning worker" provisions of the Save Our
Small and Seasonal Businesses Act of 2005 (SOS Act) to cover FY 2008.
Until October 1, 2007, if a petition was approved only for the purpose of extending an alien's
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. By contrast,
an alien who changes nonimmigrant status to H-2B was generally counted against the annual H-2B cap.
Why does USCIS authorize more H-2B workers than the statutory limit?
USCIS adjudicates H-2B petitions based on the facts presented by the petitioner in the petition.
If the alien beneficiaries of the H-2B petition are abroad, USCIS then sends the approved
petitions to the Department of State (DOS) for consular processing. Employers, however, may
decide after submitting an H-2B petition that the aliens on whose behalf it petitioned are no
longer needed. In such cases, DOS will not issue the aliens an H-2B visa. In other instances,
some aliens never appear at the consular post for their H-2B visa interview following petition
approval. DOS may also deny some H-2B visa applications even though USCIS has approved
petitions for these workers. Similarly, DHS Customs and Border Protection (CBP) may determine at a port-of-entry that the beneficiary of an approved H-2B petition is inadmissible and refuse to admit the alien to this country.
Because of such "drop outs,' the number of potential H-2B workers authorized to work by
USCIS will exceed the actual number of visas issued based on petition approvals -- the basis of
the statutory limit.
Current H2B Status : http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=138b6138f898d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD