On July 19, 2017, the Departments of Homeland Security and Labor published a final rule increasing the numerical limit (“cap”) on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2017. These visas are available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition.
This is a one-time increase based on a time-limited statutory authority. It does not affect the H-2B program in future fiscal years. It will expire at the end of the day on Sept. 30, 2017.
DHS’ decision to increase the cap was determined in accordance with Section 543 of the FY 2017 Consolidated Appropriations Act. Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request on their Form I-129 petition for this fiscal year may file under this one-time increase in the H-2B cap. The joint final rule does not apply to petitions that are not subject to the H-2B cap. Such petitions may continue to be filed under the normal rules of the H-2B program. On July 19, 2017, USCIS began accepting additional cap-subject H-2B petitions with employment start dates on or before Sept. 30, 2017, and is considering them in the order they are received.
It is important to note that this cap relief is very limited. First, the maximum is 15,000. DHS could have increased the number by 63,500. Second, the workers that qualify for the additional numbers are very limited because the legal standard is so high (irreparable harm). U.S. employers have a much greater need for H-2B workers than the artificial 66,000 visa cap set by Congress and this limited relief will not do much to help struggling American companies who cannot get the seasonal workers they need. The Joseph & Hall P.C. is monitoring the situation closely. For more information please see the May 2017 blog I wrote on this topic. If you have any questions, please call our office.
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