The U.S. Citizenship and Immigration Services (USCIS) recently announced that as of July 29, 2008, it had received a sufficient number of petitions to reach the H-2B cap for the first-half of Fiscal Year 2009 (October 1, 2008 through September 30, 2009). The USCIS stated that it will reject petitions for new H-2B Workers seeking employment start dates prior to April 1, 2009 (which is the beginning of the second-half of Fiscal Year 2009), that arrived after July 29, 2008. Petitions for foreign nationals who are currently in H-2B status do not count towards the bi-annual H-2B cap.
In Fiscal Year 2008 (October 1, 2007 through September 30, 2008), the H-2B cap for the first-half of that fiscal year was met on September 24, 2007. The H-2B quota for the second-half of Fiscal Year 2008, was met on January 2, 2008. Because the first-half of the H-2B quota for Fiscal Year 2009 was met approximately two months prior to when it was met in Fiscal Year 2008, it is assumed that the second-half of the Fiscal Year 2009 H-2B quota, will be met sometime in November 2008. Because employers are only able to commence the H-2B process with the U.S. Department of Labor no more than 120 days prior to the anticipated start date, it is assumed that most (if not all) of the lodging and landscaping industries in the Mid-West which will need summer seasonal help will be foreclosed from Fiscal Year 2009’s H-2B process, unless Congress intervenes and passes legislation to either increase the H-2B quota or to reinstate the exemption from the H-2B quota for H-2B workers who were previously present in the United States within the previous three years (the H-2B Returning Worker exemption). Although various bills are currently pending in Congress which would reinstate the H-2B Returning Worker exemption, it is assumed that the earliest that such legislation may advance in Congress would be next year after a new Congress is seated.
Additional information about the H-2B quota will be contained in our firm’s future Immigration Update when it becomes available.