An H2B visa allows someone to enter the United States temporarily to work full-time in a field other than agriculture, as there is a separate visa for farmworkers.

The person who receives the visa is known as a nonimmigrant worker under US law because the visa is for those who do not intend to stay in the US for the rest of their lives.

Everything about the H2B Visa is temporary; the employer seeking a temporary worker must have a temporary need: one-time, seasonal, peak load, or intermittent.

However, the US government has a cap on the number of people admitted in a fiscal year, which is set at 66,000 in total. Therefore, the number was split in half; 33,000 from October 1 to March 31 and another 33,000 from April 1 to September 30.

Therefore, the limit for the 2nd half of the fiscal year limit for those whose employment start date is on or after April 1, 2022, but before October 1, 2022, has been reached.

The U.S. Department of Labor (DOL) and DOH announced to allow additional H2B petitions in the fiscal year 2022.

The H-2B program

Employers can use an H2B Visa to hire foreign workers for temporary nonagricultural jobs such as landscaping, grounds maintenance, construction, restaurant/hospitality, golf, manufacturing, processing, and other specialty services firms.

It is of importance that the job opportunity must be Temporary (i.e., no more than nine months, except for one-time occurrences); Full-time (35 hours or more per week); and Nonagricultural employment in a specific area(s) of interest.

Eligible Countries

Not all world residents are eligible to apply for a visa in the H2B category. Therefore, the list of Eligibility Countries must be strictly adhered to for the smooth processing of the H2B visas.

However, the Department of Homeland Security published a long list of eligible countries. Although, the secretary of homeland security may consider adding a nation to the Eligible Country List after receiving a recommendation from the US Department of State or a written request from an unlisted foreign government.

The fact that a worker is not from an eligible country does not prevent a US employer from applying for an H2B visa for that worker; however, United States Citizenship and Immigration Services recommends filing two separate petitions.

Filing a single petition for workers from eligible countries and a separate petition for workers from non-eligible countries may reduce H-2B worker request processing delays.

The prospective employee from an ineligible country may still be eligible if the job benefits the national interests of the United States.

The process Of H2B visa

Visas are handled by the USCIS and the Department of State in the United States.

The process begins with the employer obtaining a Temporary Labor Certification (TLC) from the United States Department of Labor, then submitting Form I-129 (Petition for H2B Visa) and the TLC to the United States Citizenship and Immigration Services for approval.

After the H2B petition is approved, prospective employers outside the United States must apply for a visa at the nearest embassy or consulate.

Period of stay

Remember that everything about the H2B visa is temporary, including the stay period. An H2B worker can only stay in the US for the amount of time specified by the TLC, which cannot exceed three years.

Renewal is possible after staying for three years, but the worker must leave the country for three months before applying for readmission as an H-2B nonimmigrant.

The USCIS can also extend the stay. If the extension results in the employee remaining in the United States for more than three years, the application will be denied.

Although the extension process is similar to obtaining an H-2B visa; however, the extension application does not conflict with the H-2B cap regulation/limitation.

Caps for H-2B nonimmigrants 

The current law in the United States allows the government to issue 66,000 H2B visas per fiscal year. They are divided into two periods: 33,000  available for workers starting in the first half of the fiscal year (Oct. 1 – March 31)  and 33,000 available for workers starting in the second half of the fiscal year (April 1 – Sept. 30) in addition to any unused numbers from the first half of the fiscal year.

However, the unissued number from one fiscal year cannot be carried over to the next.

DHS Announces Availability of Additional H-2B Visas for First Half of Fiscal Year FY 2022

On January 28, 2022, the Department of Homeland Security and Department of Labor made a historical announcement that an additional 20,000 H-2B visas were approved for requested start dates before March 31, 2022, i.e., the first half of the fiscal year.

13,500 of the additional H-2B visas are limited to only returning workers who received an H-2B visa or were otherwise granted H-2B status in the previous three fiscal years (2019, 2020, and 2021) will be eligible.

The remaining 6,500 H-2B visas will be reserved for El Salvadorans, Guatemalans, Haitians, and Hondurans.

It should be noted that applications for this limited number of countries will require the inclusion of attestations from employers that they will only be petitioning for nationals of those four countries.

USCIS: H-2B Visa Cap for Second Half of FY 2022 is Reached

The USCIS published that they have received enough petitions to fill the H-2B cap for the second half of the fiscal year (FY) 2022.

While they equally emphasized the final receipt date for H-2B worker petitions requesting an employment start date on or after April 1, 2022, but before October 1, 2022, was February 25, 2022. Therefore, with a few exceptions, applications submitted after February 25, 2022, will be rejected by the USCIS.

The H-2B cap limit will not affect the following:

  1. Current H-2B workers in the United States who want to extend their stay, change the terms of their employment, or switch employers;
  2. Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam (until December 31, 2029) and
  3. Fish roe processors, technicians, and/or supervisors of fish roe processing.

DHS and DOL Announces Availability of Additional H-2B Visas for Second Half of FY 2022

After reaching the limit for 2nd half of the 2022 fiscal year, the Department of Homeland Security and Department of labor also published another historic announcement on the 31st March 2022.

According to the DOH and DOL, an additional 35,000 H-2B visas will be available for the 2nd half of the fiscal year 2022, which is expected to attract many H2B workers to work in non-agricultural jobs in the United States.

Only returning workers who received an H-2B visa or were otherwise granted H-2B status during the previous three fiscal years will be eligible for the 23,500 H2B visas.

The remaining 11,500 visas are reserved for specific countries, the  Haitians, Hondurans, Guatemalans, and Salvadorans, regardless of whether they are H2B returning workers.

Employers will almost certainly be required to certify that their business would suffer irreparable harm if additional H2B workers were not allowed in.

The DHS is expected to issue instructions for H 2B petition filing.

Reporting H-2B Fraud

Anyone, including US  and H-2B workers, who suspect they or others are the subjects of H-2B fraud or abusive behavior, can use the USCIS online tip form to report to the USCIS.

Contact Us

A little expert advice can help you save money and time. Please contact the Herman Legal Group.

We are an award-winning immigration law firm founded in 1995 and have extensive experience in all areas of immigration, including family, employment, investor, deportation defense, and citizenship.

Call 1-800-808-4013 or 1-216-696-6170 to schedule a personal consultation with Attorney Richard Herman or book online. Consultations can be held via zoom, skype, WhatsApp, facetime, or in-person.

 

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