Summer-Season H-2B Supplemental Cap Update (early-season returning worker cap reached)

Earlier today, U.S. Citizenship & Immigration Services (USCIS) announced that the 19,000 “returning worker” supplemental visas available to early-season summer employers have been fully used, and therefore, this supplemental cap has been closed. The last day that USCIS accepted supplemental cap petitions for returning worker visas was Friday, April 18^th.

Who does this impact?

• Who it impacts:
  • This only impacts summer-season employers with start dates between April 1^st and May 14^th (i.e., “early-season” employers) who hoped to file supplemental cap petitions for “returning workers” (i.e., workers who have had H-2B status within the past 3 fiscal years) but have not yet filed the final petition with USCIS before April 18^th.
• Who it does not impact:
  • If you have been planning to file for supplemental visas for workers from the Special Allocation Countries*, those visas are still available, and this announcement does not impact your filings. According to USCIS, as of April 17^th, 6,796 of the 20,000 visas under the separate Special Allocation remain available. Therefore, about 1/3 of the total visas remain available.
  • If you are a “late-season” employer (i.e., May 15^th start date or later), this announcement does not impact you. There is a separate allocation of 5,000 returning worker visas available to late-season summer employers only.
  • Finally, this does not impact winter-season employers. It also does not impact summer-season employers who are planning to file in-country petitions only, as in-country workers are “cap-exempt.”

*As a reminder, the Special Allocation Countries are Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Haiti, and Honduras. The attached Client Alert provides significant detail regarding cap relief categories, considerations, and strategy for employers in certain groups.

If I am an early-season summer employer, and I am impacted by the above, what should I do?

If you were originally planning to file a supplemental cap petition for returning workers, it is possible to instead look into filing a supplemental cap petition for workers from the Special Allocation countries. As a reminder, these visas are available to any qualified worker from the listed countries (they can be first-time H-2Bs and do not have to be returning workers). As mentioned above, there are more than 6,700 visas remaining, and based on how long those visas were available last year, we are hopeful (although we cannot guarantee) that they will remain available for all summer-season employers. Note: we have also attached a Fact Sheet from the U.S. Agency for International Development (USAID)*, which outlines recruiting resources (often free of charge) 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 may be as long as six (6) weeks and could get worse before they get better.

Action Item for Impacted Organizations

If you were originally planning to file a supplemental cap petition for returning workers and would now like to switch to a Special Allocation Countries petition, please let us know as soon as possible. We will continue to provide updates regarding the status of the supplemental visas as soon as they become available.

Please do not hesitate to contact us with any questions.

Thank you,

Keith Pabian and the Pabian Law Team