USCIS Closed, Reopened and then Reclosed the FY 2015 H-2B Cap for Temporary Nonagricultural Workers

July 16, 2015

By Immigration Group

This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.

USCIS initially believed this was sufficient to fully meet the FY 2015 cap. However, USCIS has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas. Therefore, on June 5, 2015, USCIS reopened the congressionally mandated fiscal year (FY) 2015 cap and began accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.

USCIS explained that its role in managing the H-2B cap involves ensuring that enough Form I-129 (Petition for a Nonimmigrant Worker) H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. The agency noted that “[i]t can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa” by the Department of State (DOS). USCIS said it “strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached.”

A recent analysis of DOS H-2B visa issuance and USCIS petition data revealed that the number of actual H-2B visas issued by DOS was substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS determined that there were still available H-2B visa numbers remaining for the second half of the FY 2015 cap. On June 11, however, USCIS reclosed the cap, finding that it has already been filled. This has been a very frustrating experience for our clients and we recommend complaining to your Congressional representative if you want to see the cap increased or these laws reformed.

Please note that USCIS will consider petitions received on or after October 1, 2015, and/or requesting a start date on or after that date, toward the FY 2016 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2016 H-2B cap filings. USCIS started accepting FY 2016 H-2B cap petitions on June 3, 2015.

The announcement is available at http://www.uscis.gov/news/alerts/uscis-reopen-h-2b-cap-second-half-fiscal-year-2015.