There is not a dull moment this summer for us immigration lawyers, all thanks to good old USCIS. On 8/6/09 USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. This is after closing the cap in January this year.
How could this happen? The Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.
But the catch is that filing and processing must be done by September 30, 2009. So those eligible must use the premium processing to do so. Also, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009. Otherwise the case will be considered for fiscal year 2010.
These are good news for employers in the Hospitality and construction industries, as long as they have approved Labor Certification to be used. My guess is that there are not too many employers that filed for Labor Certifications knowing that visas will not last too long. But this is an indication for the future of the H2B visa and the cap restrictions. We call the government to lift the cap once and for all.
Read the press release from USCIS here Download file