Workers Who Are Exempt from the H-2B Visa Cap

Posted by Alexander Carl | 17 May, 2022 | 0 Comments

h2b visa cap exemption

The H-2B nonimmigrant visa program allows U.S. employers to fill full-time, temporary, non-agricultural positions with workers from certain foreign countries. The program is particularly popular in industries such as hospitality, construction, landscaping, manufacturing and food processing, where there tend to be many seasonal or other temporary positions and not enough U.S. workers to fill them. 

However, demand for the program significantly exceeds the supply of H-2B visas, which are capped at 66,000 in a typical year. Fortunately for some employers and workers, some categories of H-2B workers are exempt from the cap. 

The H-2B Visa Application Process

The H-2B visa application process consists of three main phases: 

  • The U.S. employer secures a temporary labor certificate for the position from the U.S. Department of Labor (DOL).  
  • The U.S. employer submits a petition on behalf of the worker to United States Citizenship and Immigration Services (USCIS). 
  • Workers who are outside the United States apply for their H-2B visa through the Department of State (DOS).

Once the H-2B cap is reached for a given year, USCIS will no longer accept employers’ petitions to hire H-2B workers, unless those workers are not subject to the H-2B cap. 

Exempt: H-2B Workers Who Extend their Stay or Change Jobs/Terms of Employment

Workers who are exempt from the H-2B cap include those foreign nationals who are already in the United States in the H-2B status who extend their stay, change employers or change the terms and conditions of their employment. 

Depending on the position, a temporary labor certificate will be valid for a set period of time, usually less than one year. The worker’s H-2B visa is generally valid for the same amount of time, as long as the worker remains employed by the same employer under the same terms and conditions.  

H-2B classification can be extended for qualifying employment in increments of up to one year each. One individual can stay in the H-2B classification for a maximum period of three years. If an employer wants to extend employment of an existing foreign national worker, the employer must obtain a new, valid temporary labor certification covering the requested time and then petition USCIS to extend the nonimmigrant worker’s stay accordingly. But the good news is that the worker will not be subject to the cap. 

The same applies when hiring workers who were sponsored by a different U.S. employer and who are currently in the U.S. under a valid H-2B status. Employers will still have to obtain a valid temporary labor certificate for the position and submit a new petition to USCIS on behalf of the worker, but they will not have to worry about the cap. 

In addition, H-2B workers who were counted previously against the cap in the same fiscal year (which extends from October 1 through September 30) will not be subject to the cap again. 

Other Exempt Categories

Two very specific categories of workers are also exempt from the H-2B cap, due to heavy reliance on foreign temporary workers within these sectors:

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

What about H-2B dependents? 

Spouses and unmarried children under age 21 of H-2B visa holders may seek admission under the H-4 nonimmigrant classification. These family members, who are not permitted to work under this status, do not count against the H-2B cap. 

Hiring Cap-Exempt H-2B Workers

When seeking to hire cap-exempt H-2B workers, it’s important to determine early in the process that they have enough time remaining on their H-2B eligibility to fulfill their responsibilities. As previously stated, individuals can only remain in the H-2B status for a total of three years, after which time they must depart the United States and remain outside the country for three months before seeking readmission as an H-2B nonimmigrant. Keep in mind that previous time spent in the other H classifications or in the L classification counts toward total H-2B time. However, certain periods of time spent outside the United States may interrupt the H-2B worker’s authorized stay and not be counted toward the three-year limit. 

While the H-2B visa program is an excellent tool for employers who are seeking to fill certain temporary positions and for foreign nationals who want to work in the United States, the application process is complex, with multiple phases and tasks within each phase. Applications must be thoroughly completed, supported with multiple pieces of evidence and submitted in a timely manner. Working with an experienced employment visa lawyer that has expertise in the H-2B program can go a long way in ensuring your application’s success. 

To speak to an H-2B visa lawyer, contact Bolour/Carl Immigration Group at 323-857-0034 or [email protected].  

About the Author

Alexander Carl

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