The H-2B program allow a U.S. employer or agent to bring foreign nationals to the United States to fill temporary nonagricultural jobs. This classification requires a temporary labor certification issued by the Secretary of Labor. Currently, Congress has set the H-2B cap at 66,000 per fiscal year, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.
On July 23rd, USCIS announced that employers may file H-2B petitions for returning workers under the FY 2021 H-2B supplemental visa temporary final rule, which made an additional 22,000 visas available. Employers may file for these additional visas only if they are likely to suffer irreparable harm without the additional workers. A petitioner must file a new Form I-129 together with an approved and valid temporary labor certification that states an employment start date for the second half of the fiscal year, and attest that these noncitizens will be returning workers. Returning workers are defined as workers who were issued an H-2B visa or otherwise granted H-2B status in FY 2018, 2019, or 2020.
USCIS will accept petitions for returning workers until Sept. 15, 2021, or until the remainder of the cap is reached, whichever occurs first. Any petitions that arrive after this cap has been reached will be rejected. USCIS previously announced having received enough petitions for the 16,000 visas initially made available for returning workers under the rule.
For more details on eligibility and filing requirements, please contact our office. Our team of experienced attorneys would be happy to assist.