H-2B Supplemental Visa Cap Reached for Second Half of FY 2023

USCIS announced on March 31, 2023, the H-2B supplemental visa cap has been reached for the second half of the Fiscal Year 2023.

USCIS is returning petitions to employers that were filed with USCIS after March 30, 2023, seeking visas under the supplemental/additional visas cap for the second half FY2023.

Employers who still need H-2B workers with start dates under FY 2023 have the following options:

• Find workers from the Northern Triangle countries (Guatemala, El Salvador and Honduras) or Haiti. There are still supplemental H-2B visas available for workers from these countries. As of March 31, 2023, USCIS reported that 9,791 worker visas had been claimed out of 20,000 available. The final date for filing petitions requesting nationals from these countries who are exempt from the returning worker requirement is September 15, 2023.
• File for H-2B workers who are exempt from the Fiscal Year 2023 cap or H-2B workers that have already been counted against the Fiscal Year 2023 cap, which includes the following:
  • H-2B workers that are currently in the U.S. valid through at least April 1, 2023, (or the date on which USCIS receives your I-129 petition) are exempt from the H-2B cap. Employers will need to file a named I-129 petition for them to request a change of employer and extension of status.
  • H-2B workers that are outside of the U.S. that have counted against the FY 2023 cap (visa issued with an employment start date of October 1, 2022, or later). Employers will need to file a named I-129 petition to establish the workers were counted in the visa cap for FY2023.
  • Re-file the ETA 9142B Application for an employment start date of May 15 to September 30. 10,000 visas are available for returning H-2B workers where the employment period has a start date of May 15, 2023, or after. The I-129 petition can be filed as of April 13, 2023, which is 45 days after the second half cap was reached. For employers who now want to amend the start date of the ETA 9142B application to May 15 or later, it is important to consult legal counsel regarding refiling with a new application for a May 15 or later start date. These 10,000 supplemental H-2B visas are only available to returning H-2B workers who have held H-2B status in at least one of the last three fiscal years (employment start date of October 1, 2019, through September 30, 2022).

For additional information regarding the H-2B program, please contact the Fredrikson H-2 Immigration Service Team.