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H-2B cap will be increased by an additional 15,000 spots for 2017 fiscal year

H-2B cap will be increased by an additional 15,000 spots for 2017 fiscal year

The Secretary of Homeland Security (“Secretary”), in consultation with the
Secretary of Labor, has decided to increase the numerical limitation on H-2B nonimmigrant visas
to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2017.
This is a one-time increase based on a time-limited statutory authority and does not affect the H-
2B program in future fiscal years. The Departments are promulgating regulations to implement
this determination.

The INA sets the annual number of aliens who may be issued H-2B visas or otherwise
provided H-2B nonimmigrant status to perform temporary nonagricultural work at 66,000, to be
distributed semi-annually beginning in October and in April. See INA sections 214(g)(1)(B) and
214(g)(10), 8 U.S.C. 1184(g)(1)(B) and 8 U.S.C. 1184(g)(10). Up to 33,000 aliens may be
issued H-2B visas or provided H-2B nonimmigrant status in the first half of a fiscal year, and the
remaining annual allocation will be available for employers seeking to hire H-2B workers during
the second half of the fiscal year.2 If insufficient petitions are approved to use all H-2B numbers
in a given fiscal year, the unused numbers cannot be carried over for petition approvals in the
next fiscal year.

Because of the intense competition for H-2B visas in recent years, the semi-annual visa
allocation, and the regulatory requirement that employers apply for labor certification 75 to 90
days before the start date of work, employers who wish to obtain visas for their workers under
the semi-annual allotment must act early to receive a TLC and file a petition with USCIS. As a
result, DOL typically sees a significant spike in TLC applications for H-2B visas for temporary
or seasonal jobs during the U.S.’s warm weather months.

The Secretary of Homeland Security’s determination to increase the numerical limitation
is based on the conclusion that some businesses face closing their doors in the absence of a cap
increase. Some stakeholders have reported that access to additional H-2B visas is essential to the
continued viability of some small businesses that play an important role in sustaining the
economy in their states, while others have stated that an increase is unnecessary and raises the
possibility of abuse. The Secretary of Homeland Security has deemed it appropriate,
notwithstanding such risk of abuse, to take immediate action to avoid irreparable harm to
businesses; such harm would in turn result in wage and job losses by their U.S. workers, and
other adverse downstream economic effects.