United States: Cap Reached for Remaining FY 2021 Returning Worker H-2B Visas
August 19, 2021
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At a glance
- On August 13, 2021, USCIS received enough H-2B petitions for returning workers under the remaining H-2B visas made available by a supplemental H-2B regulation for FY 2021.
- USCIS will reject and return any cap-subject petitions for H-2B returning workers received after August 13, 2021, along with accompanying fees.
- USCIS will continue to accept H-2B petitions for workers that are exempt from the cap. USCIS is also accepting cap-subject H-2B petitions for the first half of FY 2022 for employment start dates on or after October 1, 2021 and before April 1, 2022.
A closer look
The Department of Homeland Security (DHS) has announced that as of August 13, 2021, it has received enough H-2B petitions for returning workers from any country of origin, pursuant to its supplemental H-2B regulation. USCIS will reject and return any cap-subject petitions for H-2B returning workers received after August 13, 2021, along with any accompanying fees.
Background
In May 2021, the Department of Homeland Security made 22,000 additional H-2B visas available for FY 2021. Of these, 16,000 were to be available to returning workers who previously held H-2B status in fiscal years 2018, 2019 or 2020, while the remaining 6,000 were reserved for nationals of the Northern Triangle countries of El Salvador, Guatemala and Honduras, regardless of whether they previously held H-2B status.
The 6,000 Northern Triangle carve-out was in keeping with President Biden’s Executive Order 14010, “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” If all 6,000 were not allocated by July 8, 2021, USCIS planned to make an announcement on its website by July 23, 2021, and the remainder of the carve-out would become available to nationals of any country, subject to the returning worker limitation.
The standard FY 2021 H-2B cap was reached on February 12, 2021, and the 16,000 supplemental cap was reached on June 3, 2021. On July 23, USCIS reported that while it received a substantial number of H-2B petitions on behalf of Northern Triangle nationals, it did not receive enough to meet the 6,000 visa number carve-out, and the agency began accepting H-2B petitions from any country for the remaining visas until the cap was reached on August 13, 2021.
As with prior supplemental increases, employers were required to attest that their business was at risk of irreparable harm without the additional workers. Employers were also able to hire workers already present in the United States in H-2B status without waiting for approval of the new petition. The supplemental increase applied to FY 2021 only and does not affect the H-2B program in future fiscal years.
What this means for employers
Employers whose H-2B petitions for returning workers were received by USCIS after August 13 should look out for returned petitions with returned fees. Employers seeking to file new H-2B petitions with a start date on or after October 1, 2022 and before April 1, 2022 can do so now.
USCIS will also continue to accept H-2B petitions for workers that are exempt from the congressionally mandated cap, including petitions for current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment; fish roe processors, fish roe technicians, or supervisors of fish roe processing; and workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam from November 28, 2009, until December 31, 2029.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
