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H-2B Visa Cap for FY 2009 Reached – What’s next?

As we anticipated, on January 8, 2009, USCIS updated its H-2B visa count page to announce that the cap has been reached for FY 2009. Thousands of employers in need of seasonal workers will once again need to search for alternatives.

The word “Cap” used in this posting refers to annual numerical limitations set by Congress on certain nonimmigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular nonimmigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification.

The H-2B visa is designated for temporary, non-agricultural workers and is issued for one year with two one-year extensions allowed. Sixty-six thousand visas are reserved for this category each year, with the stipulation that U.S. employers demonstrate that the need for the labor is temporary. It can be seasonal, tied to peak-load demands, or even a one-time occurrence. H-2B visas are a key staffing option for many industries including landscaping, seasonal hospitality, and seasonal construction, and are also critical at peak times in manufacturing, food packaging, and fisheries.

The recent proposed H2B visa changes may streamline the process, but will also create new challenges to employers and lawyer that specialize in this field. The H-2B program provides a viable alternative to undocumented labor and helps protect wage levels for all workers. By supporting this labor pool, many small business owners are given the opportunity to grow their business – ultimately enabling them to hire more full-time workers from the American labor force. Seasonal visas are a blessing to the US economy, not a threat.