Grab Your Shot: Supplemental H-2B Visas For Those Who Missed The Lottery – Work Visas

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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.