The H-2B cap for Fiscal Year 2017 (October 1, 2016 – September 30, 2017) was reached on March 13, 2017 (in less than six months). From January 1-7, 2017, the Department of Labor (DOL) received 2,971 applications requesting more than 51,000 positions for the 33,000 H-2B visas available for the second half of the fiscal year. Factors contributing to the early exhaustion of H-2B numbers included Congress’ failure to include the returning worker exemption provision in December 2016. Also, DOL allowed a small number of H-2B petitions that were pending when the H-2B cap for the first half of the fiscal year was reached to amend their start date to April 1. According to DOL, only those whose original start date was March 18-31 were allowed to do this, but it is unclear how many petitions were involved. That took some visas away from the second half. The most important factor is that U.S. employers have a much greater need for H-2B workers than the artificial 66,000 visa cap set by Congress.
There are a few categories of H2-B workers who are exempt from the H2-B cap:
Despite this grim news, there are two glimmers of hope. First, additional H2-B numbers could be released. Or, there is a small chance of legislative relief. This year, Congress provided the possibility of cap relief if the Department of Homeland Security determines that the needs of American businesses cannot be satisfied by American workers. This relief is limited by not more than the highest number of H-2B nonimmigrants who participated in the returning worker program in any year in which returning workers were exempt from such numerical limitation.
The Joseph Law Firm is monitoring the situation closely and will continue to blog on this subject when more information becomes available. If you have any questions, please call our office.
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