Important Notice from USCIS: H-2B Visa Cap is Reached

Vol. II, Issue 02 – March 2, 2018

Topics in this issue:

We have received important information from the U.S. Citizenship and Immigration Services (USCIS) regarding the H-2B Visa Cap lottery selection.


Summary: Due to an unprecedent number of applications received during the first five business days after February 20, 2018 USCIS conducted a lottery on February 28, 2018 to randomly select enough H-2B Visa petitions to meet the cap.

Every year, Congress sets the cap number of foreign workers who may obtain an H-2B Visa at 66,000 per fiscal year, with 33,000 available visas each half of the fiscal year. This year, during the first five business days USCIS received roughly 2,700 H-2B petitions requesting approximately 47,000 cap-subject workers. For this reason, USCIS, conducted a lottery on February 28, 2018 to randomly select a sufficient number of petitions to meet the 33,000 cap the second half of the fiscal year with employment start date of April 1.

As we previously informed you, in January 2018, the Department of Labor (DOL) announced a change in the H-2B Visa labor certification processing due to an unprecedent number of applications received. As of January 1, 2018, the Office of Foreign Labor Certification (OFLC) received roughly 4,498 H-2B petitions covering 81,008 H-2B worker positions. This unprecedent number is three times larger compared to the 1,538 H-2B applications received on January 1, 2017. For this reason, USCIS conducted an H-2B visa lottery for the second half of FY 2018. We, the Law Offices of Ron Katiraei, were amongst the earliest to file H-2B labor certifications with DOL and OFLC, and to submit the H-2B Visa petitions with USCIS.

Notwithstanding, USCIS will continue to accept H-2B Visa petitions that are exempt from, or not counted towards, the congressionally mandated 33,000 workers cap. This includes petitions for H-2B workers currently in the U.S. seeking to extend their stay and (if applicable) modify the terms of their employment or change employers. Petitioners filing for H-2B Visa may continue requesting premium processing with their H-2B Visa application. However, since petitions accepted in the lottery will be given a receipt date of March 1, 2018, premium processing service for these petitions will also begin on that receipt date.

The announcement by the USCIS to select H-2B petitions based upon lottery is quite new and to our knowledge unprecedent due to the extremely high number of petitions already filed. As mentioned above, under the current lottery system there are 2,700 H-2B petitions requesting about 47,000 workers for the employment period with start date of April 1. In our estimate, it is noteworthy that there may be thousands of other petitions requesting possibly over one hundred thousand (100,000) workers from employers applying after January 1, 2018 through the end of the season that are not qualified to be selected under the lottery system. We hope that the Congress will revisit this issue and legislate a provision to allow additional H-2B Visas as it has done so in the past.

 


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