FY 2019 H-2B Cap Is Reached

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At a glance

• On February 19, 2019, USCIS received enough H-2B petitions to exhaust the FY 2019 cap.  The agency conducted a lottery for petitions received on that date.
• USCIS will reject H-2B petitions not selected in the lottery and H-2B petitions requesting a start date before October 1, 2019 and received after February 19, 2019, unless the petition is exempt from the H-2B cap.
• It is not yet known whether DHS and DOL will exercise the limited H-2B cap relief authorized by the recently passed DHS FY 2019 appropriations bill.

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The situation

The FY 2019 quota for H-2B nonimmigrants was reached on February 19, 2019, according to U.S. Citizenship and Immigration Services (USCIS).  The agency conducted a lottery for H-2B petitions received on February 19, and will reject and return to employers any unselected petitions.  USCIS will also reject any new H-2B petitions requesting an employment start date before October 1, 2019 and received after February 19, 2019, but will continue to accept H-2B petitions that are exempt from the cap.  Exempt petitions include those in which current H-2B workers are seeking to extend their stay, change employers, or change the terms of their H-2B employment.

The H-2B cap for each fiscal year is 66,000, with 33,000 for workers who begin employment in the first half of the fiscal year (October 1 – March 31) and 33,000 for workers who begin employment in the second half of the fiscal year (April 1 – September 30).  USCIS accepts filings in excess of this amount to account for petition withdrawals, revocations and denials, as well as cases in which employers ultimately employ fewer H-2B workers than requested in their petitions.

The FY 2019 Department of Homeland Security (DHS) spending bill, passed on February 15, 2019, provides limited H-2B cap relief, authorizing DHS to increase the FY 2019 cap after consulting with the Department of Labor (DOL) if DHS determines there are not enough willing, qualified and available U.S. workers to meet U.S. H-2B needs this fiscal year.  The agency exercised this relief in FY 2018, but has not indicated whether it intends to do so this fiscal year. Any increase cannot exceed the highest number of H-2B workers who participated in the now-expired H-2B returning worker cap exemption. In FY 2018, the one-time increase was an additional 15,000 H-2B visas.

What it means

Employers whose H-2B petitions were received by USCIS on February 19 will soon learn whether their petitions were selected by the lottery for adjudication.   Employers seeking to file new H-2B petitions with a start date earlier than October 1 will not be able to do so unless and until DHS and DOL announce a FY 2019 H-2B visa increase.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.