October 25, 2023

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The U.S. Citizenship and Immigration Services (USCIS) has announced that it received enough petitions to meet the legally mandated cap for the first half of the 2024 fiscal year. The USCIS also reported that the final receipt date for new cap-subject H-2B worker petitions will have an employment start date before April 1, 2024.

The H-2B visa program allows employers who meet specific requirements to hire foreign nationals. However, this option is for temporarily filling non-agricultural positions. Interested employers must establish that there is a need for these workers. They must also prove that this need is either a one-time occurrence, seasonal, peak load, or intermittent condition.

The process of acquiring H-2B visa workers takes place in three steps. The first step is for a U.S.-based employer to file a temporary labor certification with the U.S. Department of Labor (DOL). Once approved, the employer will file a Petition for a Nonimmigrant Worker (Form I-129) with the USCIS. Prospective employees can apply for a visa at a U.S. consulate once the USCIS approves the petition. After the consulate approves the visa, the employees may seek admission to the U.S. at a port of entry.

Congress has mandated a “cap” of 66,000 H-2B visas per fiscal year. Of the 66,000, the USCIS has allotted 33,000 to the first half of the fiscal year. This half runs from October 1 to March 31. The USCIS will allocate the remaining 33,000 H-2B visas in the second half of the fiscal year from April 1 to September 30.

The USCIS will no longer accept cap-subject petitions for starting dates before April 1, 2024. However, it will continue accepting H-2B petitions not subject to the cap. These petitions include:

• “Current H-2B workers in the United States who extend their stay, change employers, or change the terms and conditions of their employment;
• Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from November 28, 2009, until December 31, 2029.”

The Department of Homeland Security (DHS) and DOL also noted a significantly high demand for these visas. As such, they made an additional 64,716 H-2B visas available for fiscal year 2023. However, whether they will do the same for the 2024 fiscal year remains uncertain.

Employers of H-2B workers should prepare for the upcoming employment start date for the 2024 fiscal year. Employers must complete the employment eligibility verification (Form I-9) process within the first three business days. Unfortunately, this process has proven difficult due to the variety of documentation employees may present and the changing regulatory requirements.

An electronic I-9 management system with E-Verify integration is the best way to ensure uniform compliance. This system can guide H.R. personnel through the employment eligibility verification process. In addition, it can also provide convenient storage and reminders when action is required.

Automate your employment eligibility verification today with the ensured compliance of I-9 Compliance.

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