Pabian Law Client Alert: Summer-Season H-2B Cap Reached & Supplemental Cap Petition Update

U.S. Citizenship & Immigration Services (USCIS) finally announced this evening that the H-2B visa numerical cap was reached on March 5^th for the second half of the government’s fiscal year (the summer season). In short, due to the 33,000 visa numerical limit set by Congress when H-2B visas were created, there are no new H-2B visas remaining for employers with seasonal start dates between April 1, 2025 to September 30, 2025.

Importantly, please note: this Client Alert does not impact winter-season employers (start dates in the fall and winter). Additionally, if you are a summer-season employer who is only hiring “in-country” workers (i.e., workers who are transferring between H-2B employers within the U.S.), then this Client Alert is not applicable to you, as in-country workers are “cap-exempt.”

***We know that this announcement was significantly delayed. In past years, it was announced less than a week after the cap was hit. However, we see today’s announcement as great news for H-2B employers and for the H-2B program over the next 4 years. Specifically, it shows that the Trump Administration – while working to deport foreign nationals at a record pace and curb many legal immigration programs – is generally in favor of H-2B visas and releasing additional visas to meet demands. Also, despite the delay in the announcement, the ultimate release of the supplemental visas (i.e., cap relief) is less than 1 week behind when it happened last year (on March 22^nd).

We are currently working on materials that we plan to share in the coming weeks about potential impacts to other visa types (ex. J-1 visas, work authorizations held by many foreign nationals in the hospitality industry, etc.) and how H-2Bs remain a great staffing solution and method of filling important roles to ensure that you can meet the needs of your guests, members, and customers.***

Additional Information/Reminders Regarding the Cap Announcement

1. The numerical cap was officially reached on March 5^th.  Any cap-subject H-2B petitions received by USCIS in the mail after that date will not be accepted. Petitions received on March 5^th may be accepted or may be entered into a random lottery to determine which will be accepted if necessary.
2. USCIS still has not issued receipt notices for some of the cases our office mailed out on March 4th, and therefore, we are not yet able to provide confirmation regarding whether a specific petition made the cap. However, we expect to receive additional updates in the next week or so, and we will keep impacted clients updated.
3. If your petition was assigned an unfavorable lottery grouping, and you were not able to file your out-of-country H-2B petition prior to March 5^th, and you are still interested in hiring out-of-country workers – cap relief (i.e., a supplemental visa petition) is an option. Please see the section below (and primarily the attached client alert) for additional detail.
   • Please note: the attached Client Alert mentions Group D as the likely cutoff for early-season Returning Worker cap relief.  However, due to the delay in the USCIS announcement and because the DOL is moving at a faster pace this year, some Group E employers may also be eligible before the Returning Worker visas are exhausted.  If you have a Group E case and are interested filing a Returning Worker supplemental visa petition in the coming days, please let us know.

Case Processing and Backlogs

Regarding visa processing, the U.S. Department of Labor (DOL) is currently working through the applications that were assigned various lottery groupings for April 1^st start dates. Currently, the government is processing Group G cases. The DOL is currently three (3) weeks ahead of last year’s processing times!  Although the increase in speed is great news, the delays are still significant and impactful.  The backlogs will almost certainly result in delayed start dates for H-2B visa workers for April 1^st employers with start dates in group F or later, as well as for employers with start dates after April 1^st.

In-Country Recruiting

Please remember that in-country recruiting is the best option whenever possible, as it allows organizations to sidestep the cap entirely (in-country workers are cap-exempt) and avoids the risks associated with supplemental cap petitions (e.g., “irreparable harm” and audits).  For those that may be having difficulty with in-country recruiting, we are attaching some resources that can help facilitate a smooth and successful in-country recruiting process (link below).

Please remember that there is an incredible resource available through our sister company, Seasonal Connect (link below), which has thousands of cap-exempt in-country H-2B visa workers, as well as out-of-country workers that may be available under cap relief in the platform.  Additionally, Seasonal Connect allows you to:

• Community Collaboration: Join a nationwide network of seasonal employers in various sectors to exchange recruitment strategies and insights.
• Opposite-Season Partnerships: Form partnerships with summer-season organizations to transfer workers to and from each season, ensuring consistent employment for staff and simplifying the hiring process.
• Direct Job Postings: Easily reach a wide pool of seasonal candidates by posting job openings on your profile.
• Extensive Worker Database: Access our comprehensive database of over 50,000 seasonal workers, with filters to help you find the ideal candidates.  Thousands of these workers are in-country (cap-exempt) H-2Bs looking for their next seasonal jobs!
• Housing Solutions: Leverage our partnerships to find housing options for your seasonal workforce.
• Breaking Updates: Be the first to know about the latest trends and statistics in the hospitality industry.

If you are not already a member, you can join Seasonal Connect at https://seasonalconnect.com/pricing/.

Cap Relief (i.e., Supplemental Visa Petition)

If your organization did not receive a favorable lottery assignment and missed the cap for a given application, but you are still interested in hiring out-of-country (i.e., cap-subject) H-2B workers, filing a supplemental visa petition may be an option.  Based on the date the initial cap was reached, supplemental cap petitions for early season filers will be able to be filed as soon as tomorrow, March 27, 2025.  Please keep in mind, however, that any petition filed within the first five business days (i.e., by April 2^nd) will be treated the same in terms of chances of making the supplemental cap – therefore, petitions not filed tomorrow will be at no disadvantage as long as we file the petitions by April 2^nd.

The attached Client Alert provides significant detail regarding cap relief categories, considerations, and strategy for employers in certain groups.  Note: we have also attached a Fact Sheet from the U.S. Agency for International Development (USAID)* (link below), which outlines recruiting resources for Guatemala, Honduras, and El Salvador in case it is helpful for employers seeking to take advantage of the special allocation visas.  *Please note, however, that the current foreign aid freeze has eliminated USAID and has significantly impacted recruiting and U.S. Embassy operations in these three countries – we have heard that wait times for a H-2B visa appointment at the embassies are as long as six (6) weeks and could get worse before they get better.

Next Steps

Again, if you are a Pabian Law summer-season client (regardless of start date) who is interested filing a supplemental cap petition, could you please email us to confirm your interest?  Specifically, can you please let us know which positions you want to file for?  Please let us know as soon as possible, and ideally no later than the end of the day tomorrow, March 27^th. (Even if you have already reached out to let us know your interest, please reach out again to ensure that you are on our list.)  For clients with April 1^st start dates, we will reach out to you this week to request signature on the attestation form that will be required for filing.  For clients with later start dates, we plan to reach out in early-April to request signature on this form.

Please do not hesitate to contact us with any questions.

Thank you,

Keith Pabian and the Pabian Law Team

In-Country Recruiting and Pitfalls to Avoid (January 2025)

 Seasonal Connect Overview

USAID H-2 Fact Sheet