The H-2B visa for temporary nonagricultural workers can be a bit challenging to obtain, especially because of the program’s annual limitations. Employers seeking to hire temporary nonagricultural workers must have a solid knowledge of the H-2B visa cap count to avoid running afoul of the law. H-2B visas are limited every year, and the cap can greatly influence the hiring schedule and plan.
The purpose of this guide is to explain H-2B visa cap count and provide more important information and practical advices for employers in connection with their workforce and H-2B visa rules.
What is the H-2B Visa Cap?
The H-2B visa cap refers to a numerical limit the U.S. government imposes on the total number of foreign workers, often facilitated by an H-2B broker, to be employed within the United States on a nonagricultural basis on a temporary basis within any given fiscal year. This limit is in place to stem the tide of foreign labor and protect domestic job opportunities.
The statutory cap on H-2B visas is 66,000 per fiscal year from October 1 to September 30. This cap is then split into two equal halves: 33,000 visas for workers commencing work between October 1 and March 31, often managed by an H-2B broker, and another 33,000 for those starting work between April 1 and September 30. Visas not used during the first half of the fiscal year may be reallocated for the second half. However, the remaining visas at the end of the fiscal year do not carry over to the next year.
How the H-2B Visa Program Functions?
The H-2B visa program lets foreign workers enter the U.S. for temporary nonagricultural employment, subject to the issuance of an employment certificate. Here’s a breakdown of the process:
Employer Certification
An employer obtains a labor certification from the DOL (Department of Labor) before submitting an H-2B visa application. This certification proves that reasonable recruitment for U.S. workers has taken place and that further hiring of H-2B workers will in no way negatively impact the United States labor market regarding wages and other working conditions.
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Application to USCIS
The employer files an application with the USCIS for the importation of workers under the H-2B visa program after obtaining certification from the DOL. Applications made with respect to this must be within the H-2B cap and the United States cap, which specifies the number of visas that can be given within a particular year.
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Visa Issuance and Duration
Once granted by USCIS, the employees receive the H-2B visa, which allows them to work in the U.S. for a valid employer for about one year. The visa is extendable up to three years upon some conditions arising, once again depending upon the facts and circumstances of the case.
The employers can, however, hire H-2B agents for employer protection and full compliance with all the laws and regulations associated with the H-2B application process.
How Long Can H-2B Visa Worker Stay?
H-2B workers are generally issued a visa based on the length of a temporary labor certification, with special returning worker requirements, good for an initial period of about one year. They can request extensions, which would be issued one year at a time, but the request needs to include a valid temporary labor certification. The total maximum duration for employment with an H-2B visa cap count is three years.
After three years or less in the United States on an H-2B work visa, aliens must depart for at least three months prior to readmission. Still, there are certain periods spent outside that may not count against this three-year limit.
H-2B Eligible Countries List for 2023
As of November 9, 2023, here is the H-2B eligible countries list 2023 as designated by the Department of Homeland Security.
- Andorra
- Argentina
- Australia
- Austria
- Bosnia and Herzegovina
- Barbados
- Belgium
- Bolivia
- Brazil
- Brunei
- Bulgaria
- Canada
- Chile
- Colombia
- Costa Rica
- Croatia
- Czech Republic
- Denmark
- Dominican Republic
- Ecuador
- El Salvador
- Estonia
- Fiji
- Finland
- France
- Guatemala
- Germany
- Greece
- Grenada
- Haiti
- Honduras
- Hungary
- Iceland
- Ireland
- Israel
- Italy
- Jamaica
- Japan
- Liechtenstein
- Lithuania
- Jordan
- Mongolia
- Montenegro
- Morocco
- Mozambique
- Kiribati
- Kosovo
- Latvia
- Luxembourg
- Madagascar
- Malta
- Mauritius
- Mexico
- Monaco
- Nauru
- North Macedonia
- Norway
- Panama
- Peru
- Philippines
- Poland
- Papua New Guinea
- Portugal
- Romania
- Solomon Islands
- South Africa
- South Korea
- Spain
- Nepal
- Netherlands
- New Zealand
- Nicaragua
- Saint Lucia
- San Marino
- Serbia
- Singapore
- Sweden
- Switzerland
- Slovakia
- Slovenia
- St. Vincent and the Grenadines
- Tuvalu
- Taiwan
- Thailand
- Timor-Leste
- Turkey
- Ukraine
- United Kingdom
- Uruguay
- Vanuatu
Temporary Need to Qualify Under the H-2B Visa Program
Under the temporary need category, an employer seeking to bring workers into the United States beneath H-2B status must be able to document the occurrence of one of the following:
One-Off Event
This is a discrete, one-time event or circumstance that will not recur. For example, if the company is going to have a special event or be handling just one project, then that would be a one-time occurrence. The temporary need could be stretched to three years to encompass the entire duration of the event or project.
Seasonal
Employment must be such that it is performed for a specific season or on a recurring basis, for example, during holiday periods or summer. For example, a ski resort hiring extra staff for the winter period would have an h-2b visa cap count under this definition of seasonal. This does not include temporary help against unpredictable needs or temporary employment during the vacation periods of permanent employees.
Peakload Need
This is a situation when an employer needs to temporarily increase the workforce due to periods of peak demand, such as holiday seasons or busy production cycles. The need is usually short-term supplemental labor that will not impact regular workforce operations. This prevents overwhelming permanent staff at peak times.
Casual Need
The employer requires casual workers intermittently for very short periods when no permanent worker is employed. This could be for occasional or short-term projects where the number of permanent staff would not be viable. This scheme helps businesses efficiently deal with fluctuating workloads.
Timelines and Strategies for Filing Process
Here is a detailed overview of some of the principal timelines and strategies for the successful filing of an H-2B visa petition:
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Prevailing Wage Determination
This must be requested from the National Prevailing Wage Center. This will take between 30-60 days. Initiate your application process 180-210 days before the start date, as desired, in order to buffer any delays. The prevailing wage determination is essential as it can raise issues much later in the process, considering that it is connected to the legality and equity of your wage offer.
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Filing Deadlines
The application on ETA 9142B, with accompanying Forms 9142B-1 and 9142B-2, shall be filed by the employer not later than 90 to 75 days before the date of need through the FLAG portal. The earlier within that period, the greater is the likelihood of receiving timely processing under the h2-b cap. Delaying at this stage will make a difference in many lost opportunities and complications later in efforts to secure workers.
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Be Mindful of the Visa Cap
Emphasize that only 33,000 visas are available each half-year, in addition to the supplemental allocations. Apply early to be the best contender to receive a visa under the h-2b cap; check frequently the visa availability as the allocations change as a result of demand or policy updates.
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Selection Process
Applications received in the first three days are processed randomly. Group A applications have a high chance of being selected. Take the help of H2B experts in selecting the appropriate filing strategy. A strategic approach can give an edge to your application’s chances of being reviewed favorably.
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Notices
Reply to a Notice of Deficiency, as needed, within 10 business days from the requested date on the documentation. You should send a reply to a Notice of Acceptance by the specified recruitment deadlines. Should you not send a timely response to the notices, your petition might be delayed or denied.
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Consult with Experts
Engage an H-2B consultants, attorney, or agent for the process and its compliance. Their expertise can give you valuable guidance and help you comply with complex requirements, increasing your chances of a favorable petition.
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USCIS I-129 Petition
File the I-129 petition after the NOA is received from USCIS. Avail premium processing to speed up the decision within 15 days. This step will provide you with a timely decision and will ensure that your workers can start as planned, thus avoiding any operational disruptions.
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Compliance
There will be proper payment of wages, detailed records will be retained, and DOL and USCIS will be informed of any problems that workers have within 2 working days. You should not wait until the problem finds you, as compliance will guarantee you will not be fined, penalized, or have a future hitch in the regulations.
Conclusion
Navigating the H2B visa cap is an exercise in precise planning and well-timed execution. It is so because when there is an h-2b visa cap count of just 66,000 visas, which are divided into two and can be taken, whittling down to the procedure of application, the securing of those visas requires noticing and adhering to some compliance requirements, for which there are certain time frames.
Employers should judiciously meet their workforce requirements by acquiring the necessary labor certifications, filing within the time frames mapped out, and keeping themselves updated regarding the visa cap status. Through strategic filing practices and the help of H-2B experts, businesses can get into the cap limits to procure these visas most effectively. That means staying proactive and informed to best use the H-2B visa program.
