On March 2, 2023, USCIS announced that as of February 27, 2023, it has received enough petitions to fill the 33,000 H-2B visas available for the second half of fiscal year 2023. Cap-subject H-2B petitions requesting employment dates of April 1, 2023 or later will now be rejected by USCIS.
Now that the H-2B cap is reached, USCIS continues to accept H-2B petitions under the following qualifications:
- H-2B petitions for cap-exempt beneficiaries, which includes:
- Change of employer petitions with request to extend stay in H-2B status;
- Out-of-country petitions for beneficiaries who have already been counted against the 66,000 H-2B Congressional limit for FY2023; and
- Petitions for workers in the fish roe processing industry and labor services in the Commonwealth of Northern Mariana Islands or Guam.
This announcement also confirmed the timeline for supplemental cap filings. On March 14, 2023, USCIS will begin accepting returning worker supplemental cap petitions for start dates of April 1, 2023 through May 14, 2023 (16,500 additional visas). Then on April 13, 2023, USCIS will begin accepting returning worker supplemental cap petitions for start dates of May 15, 2023 and later (10,000 additional visas). Further, on March 14, 2023, USCIS will also resume accepting supplemental cap petitions for nationals of the Northern Triangle (El Salvador, Guatemala, Honduras) and Haiti (14,694 visas remaining as of February 2023).
In prior years, the supplemental cap was not announced until late March for late May release, but the announcement for all of fiscal year 2023 came in December 2022 this time. This is also the first time that USCIS has split the supplemental cap allotment by early spring and later spring start dates. Although this filing split is welcoming news to many later spring and summer start date employers who no longer have to compete with April 1st employers, it puts many early spring start date employers at a disadvantage as further explained below.
On January 1, 2023, applications for over 142,796 H-2B positions for an April 1st start date were received by the Department of Labor (“DOL”) and randomized into processing groups A through G. Group A was enough to fill the initial 33,000 visas available, and DOL is currently certifying cases in Group B and C. Group B and C each have applications for 20,000 H-2B spots. On March 14, 2023, certified Group B and C employers will apply for the limited 16,500 returning worker supplemental visas. In prior years when the supplemental cap visas were released in May, employers with cases in later groups had a chance, but ongoing DOL processing delays now mean that Group D through G cases will not even be certified in time to file under the returning worker visa allotment. As such, recruitment options for later group cases as well as cases with start dates through May 14 are substantially limited this year.
For April 1st start employers in Groups D through G as well as later April and early May start date employers, we encourage you to recruit in-country H-2B workers while your case certification is pending. The Northern Triangle and Haiti supplemental cap allotment also remains a good recruitment option, particularly recruitment of nationals from El Salvador where their government is directly assisting U.S. employers with finding experienced workers for the landscaping and hospitality industries. As in prior years, the Northern Triangle and Haiti supplemental visa numbers will likely remain available into the summer.