H-2B Cap Reached for First Half of FY 2025

By Kayla E. Snider - Skoler Abbott P.C.

September 26, 2024

On September 19, 2024, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it has received enough petitions to reach the congressionally mandated cap on H-2B visas for the first half of fiscal year 2025. Congress has set the cap for H-2B visas at 66,000 per fiscal year, with 33,000 of those visas reserved for workers who begin employment in the first half of the fiscal year (October 1, 2024 through March 31, 2025), and 33,000 (plus any unused numbers from the first half of the fiscal year) reserved for workers who begin employment in the second half of the fiscal year (April 1, 2024 through September 30, 2025).

USCIS said they will reject new cap-subject H-2B petitions received after September 18, 2024, that request an employment start date prior to April 1, 2025. However, the USCIS is still accepting H-2B petitions that are exempt from the congressionally mandated cap.

What Workers are Exempt from the H-2B Cap?

Generally, workers with H-2B status who extend their stay, change employers, or change the terms and conditions of employment will not be subject to the H-2B cap. Further, if the petition is for a H-2B worker who has previously been counted against the cap in the same fiscal year that the proposed employment begins, the employer need only name them on the petition and indicate that they have already been counted in order to avoid running into issues with the cap. The USCIS also does not count the spouse and children of H-2B workers (classified as H-4 nonimmigrants) against the H-2B cap.

If the employer’s petition is for a worker not mentioned above, then there are only two other types of workers that would be considered exempt from the H-2B cap:

•    The petition is for fish roe processors, fish roe technicians, or supervisors of fish roe processing.
•    Workers performing labor services in the Commonwealth of the Northern Mariana Islands or Guam until Dec. 31, 2029.

What Workers are NOT Exempt from the H-2B Cap?

Now that we have talked about which workers are exempt from the H-2B cap, let’s talk about which workers are subject to the H-2B cap—meaning H-2B petitions submitted to the USCIS from here on out will need to request an employment start date after April 1, 2025.

Workers subject to the H-2B cap are those who will be doing temporary nonagricultural jobs. This means that the employer’s need for these workers falls under one of the following categories:

•    One-Time Occurrence – the employer has an otherwise permanent position that has been made temporary due to a temporary event of short duration, and the employer has not employed workers to perform the service or labor in the past, nor will it need workers to perform the service or labor in the future.
•    Seasonal-Need – the service or labor the employer is seeking workers for is traditionally tied to a season of the year by an event or pattern and it is of a recurring nature.
•    Peak Load Need – the employer regularly employs permanent workers to perform the services or labor, but it needs to temporarily supplement its permanent staff due to seasonal or short-term demand and will not make the temporary additions to staff a part of the employer’s regular operation.
•    Intermittent Need – the employer has not employed permanent or full-time workers to perform the services or labor, rather the employer only occasionally or intermittently needs temporary workers to perform the services or labor for a short period of time.

If the petition for H-2B employment falls under one of the above categories, then it is subject to the congressionally mandated H-2B cap and any petitions submitted to the USCIS after September 18, 2024, must request an employment start date after April 1, 2025.

To find out whether an H-2B Visa may provide your company with the ability to hire a non-immigrant worker, consult with your immigration and employment counsel.  

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