FY 2021 H-2B Cap Is Reached
February 24, 2021
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At a Glance
- On February 12, 2021, USCIS received enough H-2B petitions to exhaust the FY 2021 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 received after February 12, 2021 that request a start date before October 1, 2021, 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 2021 appropriations bill.
A closer look
The FY 2021 quota for H-2B nonimmigrants was reached on February 12, 2021, according to U.S. Citizenship and Immigration Services (USCIS). The agency conducted a lottery on February 17 for H-2B petitions received by February 12, 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, 2021 and received after February 12, 2021, 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.
Background
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 2021 Department of Homeland Security (DHS) spending bill, passed on December 27, 2020, provides limited H-2B cap relief, authorizing DHS to increase the FY 2021 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. Though the agency initially made an additional 35,000 H-2B visas available in FY 2020, it placed the relief on hold citing economic conditions. The agency has not indicated whether it intends to exercise the relief 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 2019, the one-time increase was an additional 30,000 H-2B visas.
What it means
Employers whose H-2B petitions were received by USCIS on February 12 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 2021 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.
