Anyone looking to submit an H-2B petition needs to be aware that U.S. Citizenship and Immigration Services (USCIS) has recently announced that it has reached its congressionally mandated cap for H-2B visas for temporary nonagricultural workers for the first half of the FY 2020. The government agency said in a recent news release that November 15, 2019, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2020 and that it will “reject new cap-subject H-2B petitions received after Nov. 15 that request an employment start date before April 1, 2020.”
USCIS may still consider an application if it exempt from the congressionally mandated cap. The types of petitions this would include are:
- “Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers.”
- “Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing.”
- “Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.”
How many H-2B Visas are Issued Per Fiscal Year?
According to USCIS, Congress has set the H-2B cap at 66,000 per fiscal year. Of the 66,000, half (33,000) are set aside for workers who will begin their employment during the first half of the fiscal year (Oct.1 – March 31) and the other half, including “any unused numbers from the first half of the fiscal year” for workers who will begin their employment during the second half of the fiscal year which runs from April 1 – Sept. 30.
Who Qualifies for H-2B Classification?
In order for a petitioner to qualify for an H-2B visa, USCIS says that the petitioner must establish that:
- “There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.”
- “Employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.”
- “It’s need for the prospective worker’s services or labor is temporary, regardless of whether the underlying job can be described as temporary.
Now, an employer’s need can only be considered temporary if it meets one of the following criteria:
- It’s a one-time occurrence. A petitioner must be able to either show that a need has been created for a temporary worker as a result of an event, or the employer has not employed workers in the past to perform the service or labor the potential employee will be performing and will not need workers in the future to perform the services/labor.
- It’s a seasonal need. An individual filing an H-2B visa petition can claim the need is seasonal but must be able to show that the service/ labor for which the employer seeks workers is:
- “Traditionally tied to a season of the year by an event or pattern.”
- “Of a recurring nature.”
- It’s a peakload need. A petitioner may claim the need for workers is a peakload need only if it can show that it:
- “Regularly employs permanent workers to perform the services or labor at the place of employment.”
- “Needs to temporarily supplement its permanent staff at the place of employment due to a seasonal or short-term demand.”
- “The temporary additions to staff will not become part of the employer’s regular operation.”
- It is an intermittent need. A petitioner who claims their need to hire is an intermittent need must be able to show that it:
- “Has not employed permanent or full-time workers to perform the services or labor.”
- “Occasionally or intermittently needs temporary workers to perform services or labor for short periods.”
Important: Anyone applying for an H-2B is required to provide a single valid temporary labor certification from the U.S. Department of Labor (DOL).
Do I need an immigration attorney to help me file an H-2B petition?
To help alleviate the burden of getting your H-2B petition filed, it is recommended that you hire an Atlanta, GA immigration attorney to do it for you. Not only will a lawyer handle the task of gathering the forms and documents you will need, but they will be sure that they are filled out accurately and submitted in a timely manner. The immigration lawyers at Kuck | Baxter Immigration Partners LLC located in Atlanta have a great deal of experience with handling H-2B petitions and are ready to help you file yours.
If you are currently dealing with a different type of situation that pertains to employment, our team of elite immigration lawyers in Atlanta, GA are also here to answer and address any questions or concerns you might have.
Kuck | Baxter Immigration Partners LLC can be reached at:
365 Northridge Road, Suite 300
Atlanta, GA 30350