H-2B visas are over for fiscal year 2023 and dates for supplemental fee announced

The 33,000 H-2B type visas for the second half of fiscal year 2023 ran out and the immigration service closed the window for receiving applications.

In turn, the Office of Citizenship and Immigration Services (USCIS) announced the filing dates for supplemental visas for the second half of the current fiscal year.

The agency said it “had received sufficient petitions to meet the statutory cap for H-2B visas by the second half of fiscal year 2023.”

It also announced the filing dates “for the supplemental H-2B visas allocated to the remainder of fiscal year 2023 and which are available under the final rule issued on December 12, 2022.

The USCIS also explained that on February 27 the final receipt date was fulfilled “for new petitions from H-2B workers subject to the regulatory maximum amount who request a job with a start date on or after April 1, 2023. and before October 1, 2023”.

Shortly before, on February 1, Univision Noticias reported that the government announced that the additional quota of applications for H-2B type visas for fiscal year 2023 for non-agricultural workers had been completed, the limit of which was 18,216.

However, it noted that, despite the closure of the window for receiving applications for the additional quota, “it was still accepting petitions for nonimmigrant H-2B workers for the additional 20,000 visas allocated for nationals of Haiti, El Salvador, Guatemala, and Honduras.” .

The application window for the additional fee was opened on December 15 under the temporary final rule that increased the maximum number of visas to 64,716 for fiscal year 2023, USCIS said.

As for new cap petitions received after February 27, 2023 that apply for employment with a start date on or after April 1, 2023 and before October 1, 2023, “will be rejected,” warned the agency.

The agency, which operates under the command of the Department of Homeland Security (DHS), indicated that in accordance with the regulations, “we determined that it was necessary to use a computer-generated random selection process designed to ensure the fair and orderly selection of capped amounts of H-2B visas available, not to exceed the maximum number for fiscal year 2023.”

He explained that on March 1, 2023, the selection process was carried out to “randomly choose the petitions from among those received on February 27, 2023.” And that after completing the random selection process, “we assign a receipt date to all selected petitions and begin priority processing services.”

USCIS also said it will continue to accept H-2B petitions “that are exempt from the cap set by Congress.” This group includes:

• Current H-2B workers in the United States who wish to extend their stay, and, if applicable, change the terms of their employment or change employers;
• Fish roe processors, fish roe technicians and/or fish roe processing supervisors; and
• Workers performing work or services in the Commonwealth of the Northern Mariana Islands and/or Guam (through December 31, 2029).

As for the filing dates for supplemental visa petitions for the second half of Fiscal Year 2023, USCIS said that on December 15, DHS and the Department of Labor (DOL) jointly published a temporary final rule that increases the maximum number of H-2B nonimmigrant visas to 64,716 additional visas for the entire fiscal year 2023.

“These supplemental visas are only available to businesses in the United States that suffer or will suffer imminent irreparable harm if they do not have the capacity to hire all of the H-2B workers requested in their petition, as certified by the employer on Form ETA 9142-B. -CAA-7 issued by the DOL.

Supplemental quota visas are intended solely for U.S. employers who want to apply for additional workers for specific periods of the fiscal year before September 15, 2023.

The US fiscal year begins on October 1 and ends on September 30 of the following year.

The application submission dates are as follows:

• For employers applying for nationals of El Salvador, Guatemala, Honduras and Haiti. USCIS will begin accepting petitions from employers requesting an employment start date from April 1, 2023 to September 30, 2023, on March 14, 2023.
• For employers requesting workers for the start of the second half of fiscal year 2023. (April 1 to May 14). USCIS will begin accepting petitions for the additional 16,500 visas made available to returning workers regardless of their country of nationality on March 14, 2023.
• For employers requesting workers by the end of the second half of fiscal year 2023 (May 15 to September 30). USCIS will begin accepting petitions for the additional 10,000 visas made available to workers who return regardless of their country of nationality on April 13, 2023.

The H-2B type visa is available to people inside or outside the United States. Two extensions may be requested, each for one year. When three years of stay have been completed, the holder must return to his country of origin, says the regulation.

Congress authorized an annual quota of 66,000 visas that are distributed in two deliveries of 33,000 in each semester of the fiscal year. The government, for its part, temporarily extends the quota when the sector needs workers and there are shortages during the hiring season.

The USCIS explains that in each expansion the employer has to apply for a Labor Certification, a procedure that can be obtained on the website of the United States Department of Labor (DOL).

The H-2B visa regulations also indicate that the holder of the document can bring their spouse and unmarried children under 21 years of age, who receive the H-4B visa. With that document they can legally remain in the United States, but they do not have permission to work.

The H2 type visas, which includes the H-2A (for peasants or field workers) were created in 1943 with the importation of workers to cover the lack of labor in the sugar cane industry.

The program changed significantly in the 1980s with the division of H2 visas into two categories, which remain to this day:

• H-2A, for agricultural workers (sowing and harvesting crops); and,
• H-2B, for non-agricultural workers (gardening, construction, forestry, planting or mowing, hotel cleaning service personnel, etc.)

The process to receive the H-2B visa consists of three steps, explains USCIS.

• In the first step, the petitioner files an application for DOL Temporary Employment Certification for Foreign Labor (Labor Certification). Before applying for H-2B Visa classification by USCIS, the petitioner must apply for and receive the Temporary Employment Certification for H-2B workers from the United States Department of Labor (DOL), or the Guam DOL if employment will be in Guam.
• In the second step, the petitioner files a Form I-129 with USCIS. After receiving the Temporary Employment Certification for H-2B employment from the DOL or the Guam DOL (if applicable), the petitioner must file Form I-129 with USCIS. With limited exceptions, the employer must submit the Temporary Employment Certification along with the Form I-129.
• In the third step, qualifying workers outside the United States must apply for a visa and/or admission.

After USCIS approves Form I-129, qualified H-2B workers outside the United States must:

• Apply for an H-2B visa with the Department of State (DOS) at a US Embassy or Consulate abroad and then apply for admission to the United States with Customs and Border Protection (CBP) at a US port of entry ; either
• Seek admission to the United States in the H-2B classification directly with CBP at a US port of entry.