On August 6, 2009, the USCIS announced the reopening of the fiscal year 2009 H-2B petition filing period and began immediately accepting new H-2B petitions. Earlier in the year, on January 7, 2009, the USCIS had announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000. However, the U.S. Department of State (DOS) received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are currently approximately 25,000 visas that may go unused, as they have not been approved. As a result of the low visa issuance rate, the USCIS has reopened the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.
The standard adjudication period for H-2B petitions is 60 days. The USCIS is encouraging employers to file as soon as possible and request premium processing service to allow expedited processing of the application. The USCIS will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions for fiscal year 2009 visas must be received, evaluated, and adjudicated on or before the fiscal year deadline of Sept. 30, 2009, the USCIS cannot guarantee approval of any H-2B petition on or before Sept. 30, 2009.
Petitions must include a valid temporary labor certification issued by the Department of Labor with the petition, which indicates an employment start date beginning in fiscal year 2009 and covers the requested employment period. Petitions received on or after Oct. 1, 2009, and/or requesting a starting date on or after Oct. 1, 2009, will be considered towards the fiscal year 2010 H-2B cap and are subject to all eligibility requirements for fiscal year 2010 H-2B filings, including the requirement that the start date listed on the petition be the same as the start date authorized on the temporary labor certification.