The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. For more information about the H-2B program, see the link to the left under "H-2B Non-Agricultural Workers."
What is the H-2B Cap?
There is a statutory numerical limit, or "cap," on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year. Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no "carry over" of unused H-2B numbers from one fiscal year to the next.
Persons who are exempt from the H-2B cap
Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap
Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
From November 28, 2009 until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam.
Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.
Fiscal Years 2012 and 2013 H-2B Cap Count
As USCIS receives H-2B petitions for fiscal years 2012 and 2013, the below chart will be regularly updated
Date of Last Count
H-2B 1st Half FY 2013
H-2B 2nd Half 2013
1 Refers to the estimated number of beneficiaries needed to be included on petitions filed with USCIS to reach the H-2B cap, with an allowance for withdrawals, denials and revocations. This number will always be higher than the actual cap.
2 As noted, if the cap is not reached for the 1st half of the fiscal year, those numbers will be made available for use during the 2nd half of the fiscal year. In some fiscal years, therefore, depending on demand for H-2B workers, more than 33,000 cap-subject persons may be granted H-2B status during the 2nd half of the fiscal year.
WASHINGTON—For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.
USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.
As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:
extend the amount of time a current H-1B worker may remain in the U.S.;
change the terms of employment for current H-1B workers;
allow current H-1B workers to change employers; and
allow current H-1B workers to work concurrently in a second H-1B position.
U.S. businesses use the H-1B programto employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields including, but not limited to: scientists, engineers, or computer programmers.
USCIS, in consultation with DOL, prepared the following frequently asked questions and answers.
Questions & Answers
Temporary Labor Certifications
Q1. When does the U.S. Department of Labor (DOL) expect me to sign an electronically filed H-2A and H-2B temporary labor certification (TLC) application?
A1. DOL requires you to sign the H-2 TLC application twice. DOL H-2A and H-2B regulations require an employer’s original signature at the time of filing the Application for Temporary Employment Certification. Further, DOL requires that the employer also sign the certified TLC when received from DOL prior to submitting the certified TLC to U.S. Citizenship and Immigration Services (USCIS) with your Form I-129 H-2 nonimmigrant temporary worker petition. Specifically, pursuant to the December 2012 H-2 iCERT FAQ (http://www.foreignlaborcert.doleta.gov/pdf/icert_implement_round1.pdf):
Both the H-2A and H-2B regulations require that the ETA Form 9142 filed with the Chicago National Processing Center (NPC) must bear the original signature of the employer and that of the employer’s authorized attorney or agent, if the employer is represented by an attorney or agent. When filing an application electronically, the iCERT account holder must upload a scanned copy of the signed and dated program-specific appendix and retain the original in its file. The scanned copy with the employer’s signature and, if applicable, that of its attorney or agent on the Appendix B.1 (for the H-2B program) or Appendix A.2 (for the H-2A program), as appropriate, satisfies the original signature requirement.
Additionally, DOL requires original signatures after it has certified an application for H-2A or H-2B TLCs, as a result of its issuance of these certifications electronically. As noted in its December 2012 H-2 iCERT FAQ, DOL requires that “[w]here an application is granted temporary labor certification, the employer and, if applicable, its attorney or agent will be required to sign and date Appendix B.1 or A.2 of the certified ETA Form 9142 received from Chicago NPC.” In order to comply with this DOL instruction, and for USCIS to accept an H-2 petition filed on the basis of the TLC, the petitioner must submit a certified TLC bearing original signatures with its H-2 petition. Scanned copies of original signatures at the time of initial filing of the TLC with DOL will not satisfy this new requirement.
Q2. When did DOL implement this change in procedure?
A2. DOL implemented this change in procedure effective October 15, 2012 for H-2B applications and effective December 10, 2012 for H-2A applications. On those dates, DOL implemented electronic filing of H-2 TLC applications through its iCERT Visa Portal. Based on guidance issued by the DOL Office of Foreign Labor Certification (OFLC), applicants are required to provide an original signature (as opposed to an electronic signature) on the TLC after OFLC has certified the TLC under the newly implemented electronic filing system. This differs from the previous paper filing process, in which employers were required to submit an original signature on their TLC applications only at the time of filing.
Q3. Why am I required to submit an original signature to USCIS if I already submitted one to the DOL?
A3. Department of Homeland Security (DHS) regulations require that a “valid” TLC be submitted with H-2A petitions, and an “approved” or “favorable” TLC be submitted with H-2B petitions. When a TLC is certified, the employer and, if applicable, its attorney or agent, are required to sign and date Appendix A.2 of the TLC for an H-2A petition and Appendix B.1 of the TLC for an H-2B petition. DOL does not consider a TLC to be either “valid” or “approved/favorable” unless the certified TLC bears the employer’s original (as opposed to electronic) dated signature and, if applicable, an original signature of the employer’s attorney or agent. According to DOL’s Federal Register notice implementing electronic filing, DOL requires the employer and, if applicable, the employer’s agent or attorney, to provide an original signature and date on the DOL certified ETA Form 9142 appendix (Appendix A.2 for H-2A TLCs, and Appendix B.1 for H-2B TLCs), and, only after providing such original signature(s) and date(s), to submit this originally signed and dated certification to USCIS. See DOL Notice, Electronic Filing of H–2A and H–2B Labor Certification Applications Through the iCERT Visa Portal System, 77 FR 59670, 59672 (Sept. 28, 2012).
Q4. Which sections of the TLC should an Individual Employer sign?
A4. If you are identified as an “Individual Employer” on page 2 of the TLC, regardless of whether you are represented by an attorney or agent, an authorized representative from your organization must sign Section B (“Employer Declaration”) of either Appendix A.2 of the TLC for an H-2A petition or Appendix B.1 of the TLC for an H-2B petition. In addition, if you are represented by an attorney or agent, the attorney or agent must sign Section A of the corresponding appendix.
Q5. Which sections of the TLC should an H-2A Labor Contractor or Job Contractor sign?
A5. If you are identified as an “H-2A Labor Contractor” or “Job Contractor” on page 2 of the TLC, regardless of whether you are represented by an attorney or agent, an authorized representative from your organization must sign Section B (“Employer Declaration”) of either Appendix A.2 of the TLC for an H-2A petition or Appendix B.1 of the TLC for an H-2B petition. If you are filing an H-2B petition, the client of the job contractor must also sign a separate Appendix B.1. In addition, if you are represented by an attorney or agent, the attorney or agent must sign Section A of the corresponding appendix.
Q6. Which sections of the TLC should an Association filing as a Sole Employer sign?
A6. If you are identified as an “Association – Sole Employer” in Item 17 on page 2 of the ETA Form 9142 TLC for an H-2A petition, regardless of whether you are represented by an attorney or agent, an authorized representative from your association must sign Section B (“Employer Declaration”) of the Appendix A.2 of the TLC. In addition, if you are represented by an attorney or agent, the attorney or agent must sign Section A of the corresponding appendix.
Q7. Which sections of the TLC should an Association filing as a Joint Employer sign?
A7. If you are identified as an “Association – Joint Employer” in item 17 on page 2 of the TLC for an H-2A petition, regardless of whether you are represented by an attorney or agent, an authorized representative from your association must sign Section B (“Employer Declaration”) of Appendix A.2 of the TLC. In addition, if you are represented by an attorney or agent, the attorney or agent must sign Section A of the corresponding appendix.
Q8. Which sections of a TLC should an Association filing as an Agent sign?
A8. If you are identified as an “Association – Filing as an Agent” in item 17 on page 2 of the TLC for an H-2A petition, regardless of whether you also are represented by an attorney or agent, an authorized representative from your association must sign Section A (“Attorney or Agent Declaration”) Appendix A.2 as the agent. Each association member who will be employing an H-2A worker covered by the TLC, in turn, must sign Section B (“Employer Declaration”) of Appendix A.2. as the employer. In addition, if you are represented by an attorney or agent, the attorney or agent must also sign Section A of the same appendix page.
Q9. Are there any other signature requirements for completing the TLC?
A9. Yes. If you are an H-2B Job Contractor that will be sharing workers with one or more client business, an Appendix B.1, signed by an authorized representative from each business in Section B (“Employer Declaration”), will need to be submitted to USCIS along with Form I-129. An H-2B Job Contractor must submit a signed Appendix B.1 for each client with whom it is sharing employees as well as for itself.
Q10. What will USCIS do if a DOL required signature is missing on the certified TLC?
A10. If a certified TLC is filed without an original signature, the H-2 petition may be rejected as incomplete because, as noted, DOL does not consider a certified TLC to be valid or approved/favorable unless it contains the appropriate new original signatures.
Signing the H Supplement
Q1. Why am I required to obtain a signature on the H Classification Supplement to Form I-129?
A1. 8 C.F.R 103.2(a)(7) states that a benefit request (including Form I-129 H-2A and H-2B petitions) will be rejected if it is not properly signed. This includes the H Classification Supplement to Form I-129. Furthermore, the instructions to the Form I-129 for both the H-2A and H-2B classifications indicate that “[T]he petitioner or employer (if different than the petitioner), and each joint employer must complete and sign relevant sections of the H Classification Supplement…” Since the TLC is considered part of the I-129 petition, it must be properly signed as well.
Q2. Can an agent sign on behalf of employer?
A2. In some cases, an employer uses an agent who meets the requirements of an agent-petitioner to file Form I-129 on its behalf. In such an event, the employer (who is not the petitioner in Part 1) must sign the H Classification Supplement in Section 3, Part B. The agent-petitioner must still sign Part A.
In cases where there are multiple employers, each joint employer must sign Part C in Section 3 of the H Classification Supplement. If there are more than four (4) joint employers, the additional original signatures may be submitted on extra copies of the H Classification Supplement of Form I-129.
Q3. What will happen if USCIS determines that my petition does not have all the required original signatures after accepting it for filing?
A3. If the petition is accepted and USCIS later determines that the petition was improperly signed, USCIS will issue a Request for Evidence (RFE) requesting the proper signatures. If the proper signatures are not received in response to the RFE, USCIS may deny the petition for not being properly signed in accordance with 8 C.F.R. 103.2(a)(2).
The Department has published in the Federal Register a notice establishing the 2013 allowable meal charges and maximum travel subsistence reimbursement amounts. The 2013 allowable charge for providing three meals a day is set at $11.42 per day, although employers may petition the Chicago National Processing Center for a higher charge if justified by documentation of actual costs. Similarly, the 2013 minimum subsistence charge for meals during travel is set at $11.42 a day. The maximum travel subsistence for meals will remain set at $46.00 per day again this year for those workers who submit receipts substantiating a higher expense. Workers may claim up to $34.50 with receipts for travel subsistence when traveling less than a full day.
The new 2013 amounts are effective upon publication in the Federal Register. To learn more, please read the Federal Register notice.
You contact IRS for tax identification. Also, SSN can be given for non-work purposes if the law requires you to provide a non-work Social Security number to get a federal benefit or state general assistance benefit that you are otherwise qualified for.
See this info TIN: http://www.irs.gov/Individuals/International-Taxpayers/Taxpayer-Identification-Numbers-(TIN)
[Federal Register Volume 78, Number 13 (Friday, January 18, 2013)] [Notices] [Pages 4154-4155] From the Federal Register Online via the Government Printing Office [www.gpo.gov] [FR Doc No: 2013-00908]
DEPARTMENT OF HOMELAND SECURITY
[DHS-2011-0108] RIN 1601-ZA11
Identification of Foreign Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs
AGENCY: Office of the Secretary, DHS.
SUMMARY: Under Department of Homeland Security (DHS) regulations, U.S. Citizenship and Immigration Services (USCIS) may approve petitions for H-2A and H-2B nonimmigrant status only for nationals of countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated by notice published in the Federal Register. That notice must be renewed each year. This notice announces that the Secretary of Homeland Security, in consultation with the Secretary of State, is identifying 59 countries whose nationals are eligible to participate in the H-2A and H-2B programs for the coming year. The list published today includes one new addition: Grenada.
DATES: Effective Date: This notice is effective January 18, 2013, and shall be without effect at the end of one year after January 18, 2013.
FOR FURTHER INFORMATION CONTACT: Francis Cissna, Office of Policy, Department of Homeland Security, Washington, DC 20528, (202) 447-3835.
Background: Generally, USCIS may approve H-2A and H-2B petitions for nationals of only those countries that the Secretary of Homeland Security, with the concurrence of the Secretary of State, has designated as participating countries. Such designation must be published as a notice in the Federal Register and expires after one year. USCIS, however, may allow a national from a country not on the list to be named as a beneficiary of an H-2A or H-2B petition based on a determination that such participation is in the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F) and 8 CFR 214.2(h)(6)(i)(E).
In designating countries to include on the list, the Secretary of Homeland Security, with the concurrence of the Secretary of State, will take into account factors including, but not limited to: (1) The country's cooperation with respect to issuance of travel documents for citizens, subjects, nationals, and residents of that country who are subject to a final order of removal; (2) the number of final and unexecuted orders of removal against citizens, subjects, nationals, and residents of that country; (3) the number of orders of removal executed against citizens, subjects, nationals, and residents of that country; and (4) such other factors as may serve the U.S. interest. See 8 CFR 214.2(h)(5)(i)(F)(1)(i) and 8 CFR 214.2(h)(6)(i)(E)(1).
In December 2008, DHS published in the Federal Register two notices, ``Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2A Visa Program,'' and ``Identification of Foreign Countries Whose Nationals Are Eligible to Participate in the H-2B Visa Program,'' which designated 28 countries whose nationals are eligible to participate in the H-2A and H-2B programs. See 73 FR 77,043 (Dec. 18, 2008); 73 FR 77,729 (Dec. 19, 2008). The notices ceased to have effect on January 17, 2010 and January 18, 2010, respectively. See 8 CFR 214.2(h)(5)(i)(F)(2) and 8 CFR 214.2(h)(6)(i)(E)(3). To allow for the continued operation of the H-2A and H-2B programs, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has published subsequent notices on an annual basis. See 75 FR 2,879 (Jan. 19, 2010) (adding 11 countries); 76 FR 2,915 (Jan. 18, 2011) (removing Indonesia and adding 15 countries); 77 FR 2,558 (Jan. 18, 2012) (adding five countries).
The Secretary of Homeland Security has determined, with the concurrence of the Secretary of State, that the 58 countries designated in the January 18, 2012 notice continue to meet the standards identified in that notice for eligible countries and therefore should remain designated as countries whose nationals are eligible to participate in the H-2A and H-2B programs. Further, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has determined to add Grenada to the list. This determination is made taking into account the four factors identified above. The Secretary of Homeland Security also considered other pertinent factors including, but not limited to, evidence of past usage of the H-2A and H-2B programs by nationals of the country to be added, as well as evidence relating to the economic impact on particular U.S. industries or regions resulting from the addition or continued non-inclusion of specific countries.
Designation of Countries Whose Nationals Are Eligible To Participate in the H-2A and H-2B Nonimmigrant Worker Programs
Pursuant to the authority provided to the Secretary of Homeland Security under sections 214(a)(1), 215(a)(1), and 241 of the Immigration and Nationality Act (8 U.S.C. 1184(a)(1), 1185(a)(1), and 1231), I am designating, with the concurrence of the Secretary of State, nationals from the following countries to be eligible to participate in the H-2A and H-2B nonimmigrant worker programs:
Argentina Australia Barbados Belize Brazil Bulgaria Canada Chile Costa Rica Croatia Dominican Republic Ecuador El Salvador Estonia Ethiopia Fiji Grenada Guatemala Haiti Honduras Hungary Iceland Ireland Israel Jamaica Japan Kiribati Latvia Lithuania Macedonia Mexico Moldova Montenegro Nauru The Netherlands Nicaragua New Zealand Norway Papua New Guinea Peru The Philippines Poland Romania Samoa Serbia Slovakia Slovenia Solomon Islands South Africa South Korea Spain Switzerland Tonga Turkey Tuvalu Ukraine United Kingdom Uruguay Vanuatu
This notice does not affect the status of aliens who currently hold valid H-2A or H-2B nonimmigrant status. Persons holding such status, however, will be affected by this notice at the time they seek an extension of stay in H-2 classification, or a change of status (1) from another nonimmigrant status to H-2 status or (2) from one H-2 status to another.
Nothing in this notice limits the authority of the Secretary of Homeland Security or her designee or any other federal agency to invoke against any foreign country or its nationals any other remedy, penalty, or enforcement action available by law.
Here is a recent visa stamping experience narrated by one of our team members. ------------------------- I went for an H-1B visa stamping at the U.S. Consulate in Toronto, Canada, in November 2012. This was my first H-1B visa stamping. I wanted to share my experience with you and hope that it will be helpful in providing some insight into the entire process. Scheduling the Interview The official website for Toronto Consulate is http://toronto.usconsulate.gov/. All the basic information about various visa types is available at this website. After going through the relevant information, I scheduled my visa interview by making an appointment online at http://usvisa-info.com/. This link enables you to make an online payment, submit the applicable DS-160 Form, and electronically attach your photograph. Once you submit the application, the website will direct you to print a confirmation page that you are required to carry with you at the time of interview. The website also asks you to indicate the location where you want to pick up your passport. Obtaining Canadian Visa and Crossing the Border by Car Unless you are visa-exempt, a visitor’s visa to Canada is required to secure entry to Canada. A Canadian visa can be obtained by electronically filing the applicable forms and mailing your passport and supporting documents to the respective Canadian Consulate in your jurisdiction. Generally, an in-person interview is not required and, if approved, the Canadian Consulate will mail you the passport with a visa stamp. More information can be found at http://www.cic.gc.ca. A valid I-94 or other evidence of lawful status in the U.S. is one of the requirements for obtaining a tourist visa to Canada. I had already obtained the visa. I drove to the Buffalo/Niagara border and easily secured an entry into Canada. The officer simply looked at my passport and put an entry stamp on my passport. Please note that while driving into Canada, you will not face any U.S. immigration authorities, and you should never surrender your I-94 in case you are questioned by immigration. The reason is that, upon your return to the U.S., immigration will ask you for your original I-94 before giving you entry. Canadian immigration authorities may or may not check your baggage and car to ensure that you are not carrying any food products or prohibited items. I crossed around 3:00 a.m., and there was no traffic at the port of entry. I was able to cross the border in less than ten minutes. Entering the Consulate My appointment time was 9:45 a.m. Consulate had instructed me previously, while submitting the application, to arrive no more than 20 minutes early. Therefore, I reached there between 9:25 to 9:30 a.m. There was a long waiting line in front of me. There was a person in charge checking the appointment page and passports for all the applicants standing in the line. He asked me to step out of the line and join the line again at 10:00 a.m. because of the waiting times. Therefore, there is no point in arriving earlier for the interview. Just arrive 20 minutes before as directed by the Consulate. In addition, if you are interviewing in the winter, please make sure to dress up warmly, because it gets pretty cold in Canada in the winter, and you might have to stand in line for several minutes, if not hours. Once your turn comes and you reach near the window, they will again check your confirmation page and passport. Then you enter the consulate, and they will scan you and your carry-ons for security clearance. Once you have passed through security clearance, you will be directed to a desk, where the person in charge will again check your paperwork and direct you to the main hall where interviews are being conducted. Once you enter that room, you straightaway get into a line to reach one of the windows, where the person in charge will collect your appointment confirmation, passport, and related visa petition (I-797 in case of H-1B). They will give you a slip assigning you a number. Fingerprinting Once you have received the slip assigning your number, you will sit in the waiting area with digital screens placed in front directing the candidates to appear at specific window for fingerprints. When my number came up, I went for the fingerprints. The person in charge informed me that there was some problem with my photograph, and I needed to retake the photograph. There is a photo booth in the same hall that you can use to get new photos. Make sure you carry Canadian $10 or lower bills or coins, as the machine does not accept higher bills. I provided my new photograph, and they took my 10-finger scan. The Interview Process After fingerprinting, I again went back to the seating area and waited for my number to appear on the screen. When my number appeared, I went to the specified window and greeted the officer. The interviewer asked me questions related to my field of study, the nature of my employment, and information about my employer. The officers were very polite and gave me time to look for and provide them with the requested documents. Within two or three minutes, the interviewing officer asked me to collect my passport from the pick-up location. It was a great relief. My advice is to be confident and polite with the officer. Just let him do his job and answer only the questions he is asking. Mostly, people were dressed up in formal attire. It is not a requirement, but, in my opinion, it definitely is more presentable to dress up formally. The interview was quick, but I would say that the entire process lasted for about two to three hours. Collecting Passport and Re-entering the U.S. I interviewed on Monday, and was able to collect my passport at the designated location only on Thursday. They will send you an email containing the tracking information once your passport is ready to be picked up. You will need to carry a photo ID to pick up your passport. After picking up my passport, I again drove back to the Niagara border. There was a large waiting line during the daytime. When my turn came, I presented them with passport containing my visa, original I-94, and H-1B petition (a copy is fine). The officer asked me a simple question on what was the purpose of my visit. My answer was that I will be working on H-1B and gave my employer’s name, city, and state. I was given an entry without any problem.