USCIS Reaches H2B Cap

U.S. Citizenship and Immigration Services (USCIS) announced Monday October 1, 2007 that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of Fiscal Year 2008 (FY2008).

USCIS is hereby notifying the public that September 27, 2007 is the “final receipt date” for new H-2B worker petitions requesting employment start dates prior to April 1, 2008. The “final receipt date” is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first six months of FY2008.

Under current law, a “returning worker” who was counted toward the H-2B numerical limit during FY2004, FY2005 or FY2006, was exempt from being counted against the FY2007 H-2B cap. As of today, Congress has not reauthorized or extended the “returning worker” provisions for FY2008. As a result of the expiration of the “returning worker” provisions, however, all petitions requesting H-2B workers for new employment with an employment start date of October 1, 2007 or later (e.g. FY2008 employment) will be counted toward the annual H-2B cap of 66,000 for FY2008, whether or not they would be recognized as H-2B “returning workers” under the provisions of law currently applicable to FY2007 start dates. This is a death sentence to many of our Hospitality, Construction, Entertainment and other industries that rely on these workers to keep their companies going. We urge all employers to write to their representatives demanding H2B visa reform immediately.

USCIS will apply a computer-generated random selection process to all petitions which are subject to the cap and were received on September 27, 2007. USCIS will use this process to select the number of petitions needed to meet the cap. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected. USCIS will also reject petitions for new H-2B workers seeking employment start dates prior to April 1, 2008 that are received after September 27, 2007.

Petitions for workers who are currently in H-2B status do not count towards the congressionally mandated bi-annual H-2B cap. USCIS will continue to process petitions filed to:

  • Extend the stay of a current H-2B worker in the United States;
  • Change the terms of employment for current H-2B workers and extend their stay; or
  • Allow current H-2B workers to change or add employers and extend their stay.
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