The H-2B Visa and the Statutory Cap: In Brief

Summary

The Immigration and Nationality Act (INA) of 1952, as amended, enumerates categories of aliens, known as nonimmigrants, who are admitted to the United States for a temporary period of time and a specific purpose. One of these nonimmigrant visa categories—known as the H-2B visa—is for temporary nonagricultural workers.

The H-2B visa allows for the temporary admission of foreign workers to the United States to perform nonagricultural labor or services of a temporary nature if unemployed U.S. workers are not available. Common H-2B occupations include landscape laborer, amusement park worker, and housekeeper. The H-2B program is administered by the U.S. Department of Homeland Security’s (DHS’s) U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of Labor’s (DOL’s) Employment and Training Administration. DOL’s Wage and Hour Division also has certain concurrent enforcement responsibilities. The H-2B program currently operates under regulations issued by DHS in 2008 on H-2B requirements, DHS and DOL jointly in 2015 on H-2B employment, and DHS and DOL jointly in 2015 on H-2B wages.

Bringing workers into the United States under the H-2B program is a multi-agency process involving DOL, DHS, and the Department of State (DOS). A prospective H-2B employer must apply to DOL for labor certification. Approval of a labor certification application reflects a finding by DOL that there are not sufficient U.S. workers who are qualified and available to perform the work and that the employment of foreign workers will not adversely affect the wages and working conditions of U.S. workers who are similarly employed. If granted labor certification, an employer can file a petition with DHS to bring in the approved number of H-2B workers. If the petition is approved, a foreign worker overseas who the employer wants to employ can go to a U.S. embassy or consulate to apply for an H-2B nonimmigrant visa from DOS. If the visa application is approved, the worker is issued a visa that he or she can use to apply for admission to the United States at a port of entry. H-2B workers can be accompanied by eligible spouses and children.

By law, the H-2B visa is subject to an annual numerical cap. Under the INA, the total number of aliens who may be issued H-2B visas or otherwise provided with H-2B nonimmigrant status in any fiscal year may not exceed 66,000. USCIS is responsible for implementing the H-2B cap, which it does at the petition receipt stage. Spouses and children accompanying H-2B workers are not counted against the H-2B cap.

Certain categories of H-2B workers are exempt from the cap. These categories include, for example, current H-2B workers who are seeking an extension of stay, a change of employer, or a change in the terms of their employment. In addition, a temporary statutory provision that was in effect from FY2005 through FY2007 exempted certain returning H-2B workers from the cap. It applied to returning H-2B workers who had been counted against the cap in any one of the three prior fiscal years. Legislation to reinstate a returning worker exemption has been introduced in the 114th Congress.

After several years of cap-exceeding demand for H-2B visas, issuances of H-2B visas fell to under 45,000 in FY2009 and remained below the 66,000 cap level through FY2013. The H-2B cap was reached in FY2014, and demand for the visas continues to exceed supply. For FY2015, USCIS announced that it had received a sufficient number of petitions to reach the H-2B cap as of June 11, 2015, and would not be accepting any more cap-subject H-2B petitions for work beginning prior to October 1, 2015.