Grab Your Shot: Supplemental H-2B Visas for Those Who Missed the Lottery

Amid the ever-evolving landscape of business and workforce dynamics, the recent buzz around the H-2B visa lottery has sent ripples of anticipation and concern through companies reliant on foreign workers. As immigration and labor shortages continue to weave intricate challenges, the opportunity to secure additional H-2B visa numbers opens a new chapter of possibilities and hurdles. In this blog post, we delve into the nuances of the H-2B visa lottery and explore strategies for companies grappling with securing H-2B workers following United States Citizenship and Immigration Services’ (USCIS) latest announcement of reaching the H-2B Cap for the second half of FY2024.

Background

An H-2B visa is a temporary nonimmigrant visa category under United States (U.S.) law that allows employers to hire foreign workers for temporary or seasonal non-agricultural positions. These visas are typically used by industries such as hospitality, landscaping, construction, and other sectors that experience seasonal fluctuations in labor demand. H-2B visas are subject to annual numerical limits, meaning there is a numerical cap on the number of foreign nationals who are eligible for an H-2B visa in a fiscal year. Currently, the cap is set at 66,000 visas per year, split evenly between workers starting employment in the first half (Oct. 1 to Mar. 31) and the second half (Apr. 1 to Sept. 30) of the fiscal year.

On Mar. 8, 2024, USCIS announced that it had reached the congressionally mandated H-2B cap for the second half of FY 2024, indicating that a sufficient number of petitions had been received. Alongside this announcement, USCIS specified the filing dates for supplemental H-2B visas reserved for eligible individuals. This supplemental notice follows a previous USCIS announcement in November of 2023, where they mentioned plans to provide an additional 64,716 visas for U.S. businesses in urgent need of H-2B workers to avoid irreparable harm.

Who Can Petition for the Supplemental H-2B Visas?

Only U.S. businesses facing or at risk of suffering irreparable harm, specifically defined as permanent and severe financial loss, if they cannot employ all requested H-2B workers on their Form I-129 petition are eligible to apply for supplemental H-2B visas under the temporary increase.

Additionally, employers can only request foreign workers who fall under one of the following categories:

  • Returning Workers: Foreign workers who have received H-2B visas or status in FY 2021, 2022, or 2023; or
  • Country-Specific Workers: Foreign workers who are nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, or Costa Rica.

It’s important to note that the provisions regarding the 64,716 supplemental visas do not apply to petitions outside the H-2B cap, such as H-2B extension requests or petitions for certain fish roe processors. These petitions must follow the regular rules of the H-2B program.

Allocation and Filing Dates

In its announcement on Mar. 8, 2024, USCIS specified that employers can file H-2B petitions requesting supplemental visas starting no earlier than Mar. 22, 2024. USCIS will accept H-2B petitions for supplemental visas until the allocations for supplemental caps are filled. The supplemental 64,716 H-2B visas are divided into the following allocations:

  • For the first half of FY 2024 (Oct. 1 – Mar. 31):20,716 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality. These petitions must have requested employment start dates on or before Mar. 31, 2024. On Jan. 12, 2024, USCIS announced that it had received enough petitions to reach the cap for this allocation;
  • For the early second half of FY 2024 (Apr. 1 to May 14):19,000 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality.  These early second half of FY 2024 petitions must request employment start dates from Apr. 1, 2024, to May 14, 2024. Furthermore, employers must file these petitions no earlier than Mar. 22, 2024 (15 days after the second-half statutory cap is reached);
  • For the late second half of FY 2024 May 15 to Sept. 30): 5,000 visas limited to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2021, 2022, or 2023, regardless of country of nationality.  These late second half of FY 2024 petitions must request employment start dates from 15, 2024, to Sept. 30, 2024. Furthermore, employers must file these petitions no earlier than Apr. 22, 2024 (45 days after the second half statutory cap is reached); and
  • For the entirety of FY 2024:20,000 visas reserved for nationals of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation) as attested by the petitioner, regardless of whether such nationals are returning workers. Employers requesting an employment start date in the first half of FY 2024 (on or before Mar. 31, 2024) may file such petitions immediately on or after Nov. 17, 2023. Employers requesting an employment start date in the second half of FY 2024 (on or after Apr. 1, 2024) must file such petitions no earlier than Mar. 22, 2024 (15 days after the second half statutory cap is reached).

For employers who did not secure a visa in the initial H-2B lottery, all hope is not lost. The chance to secure these supplemental visas could prove immensely advantageous for those at risk of suffering irreparable harm without the requested H-2B workers. It’s essential to understand the eligibility criteria and timing for applying for these additional visas.

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About the Author:

Najah S. Allaham is an associate with Dickinson Wright’s Immigration Practice Group. Najah has years of experience assisting employers obtain employment based immigrant visas, including PERM labor certifications, EB1, EB2, and EB3 immigrant visas as well as various nonimmigrant employment based visas including E-2, L-1,H-1B, H-2B, TN visas. She can be reached at 248-433-7579 or nallaham@dickinsonwright.com and her bio can be accessed here.