March 7, 2023

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The U.S. Citizenship and Immigration Services (USCIS) has announced that it reached the H-2B visa cap for the second half of the 2023 fiscal year (FY 2023). Accordingly, the agency has now announced filing dates for the additional visas made available under the temporary final rule for FY 2023.

The USCIS has announced that it obtained sufficient petitions under the congressionally mandated H-2B cap of 33,000 workers for the second half of the fiscal year. As such, the agency will reject any cap-subject petitions received after February 27, 2023, for employment dates beginning on or after April 1, 2023, and before October 1, 2023.

The number of petitions received significantly exceeded the H-2B visas available for the second half of FY 2023. As a result, the USCIS utilized an electronic process to make a neutral selection for who will proceed. The USCIS has assigned a receipt date for the selected petitions. As such, the premium processing service has begun.

Though the USCIS will no longer accept cap-subject petitions, it will accept exempt H-2B petitions. Exempt petitions include:

• Extensions for current H-2B workers and those who wish to change the terms of their employment or employers;
• 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.

In the same announcement, the USCIS added that it would mention the dates for the supplemental visas made available under the temporary final rule published on December 15, 2023. This rule provided 64,716 additional H-2B visas for FY 2023.

These visas will become available to U.S. businesses suffering or will suffer irreparable harm without the H-2B workers requested in their petitions. The supplement visas are also limited to employers petitioning for additional workers for periods before September 15, 2023.

The filing start dates for these supplemental visa allocations are as follows:

• “For employers seeking nationals of El Salvador, Guatemala, Honduras, and Haiti: USCIS will begin accepting petitions for employers requesting an employment start date from April 1, 2023, to September 30, 2023, on March 14, 2023. USCIS began accepting petitions from employers with employment start dates from October 1, 2022, to March 31, 2023, in December 2022.
• For employers seeking workers for the early second half of FY 2023 (April 1 to May 14): USCIS will begin accepting petitions for the additional 16,500 visas made available to returning workers regardless of country of nationality on March 14, 2023.
• For employers seeking workers for the late second half of FY 2023 (May 15 to September 30): USCIS will begin accepting petitions for the additional 10,000 visas made available to returning workers regardless of country of nationality on April 13, 2023.”

Employers should remember that employment regulations for H-2B and other workers continue after completing the filing process and starting work. For example, they must complete the employment eligibility verification (Form I-9). Unfortunately, Form I-9 often becomes a minefield of liability for employers.

One of the best ways to ensure compliance is investing in an electronic I-9 management system. This system provides step-by-step guidance for completing Form I-9s. It also offers convenient reminders and secure storage for forms and documentation.

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

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