USCIS Completes H2B Lottery Under One-Time Expansion of FY-2018 Cap

On May 31, 2018, the United States Citizenship and Immigration Services (USCIS) began receiving H2B petitions under the temporary final rule that increased the numerical H2B cap through the end of the current fiscal year (FY-2018) by only 15,000. We discussed this one-time expansion of the H2B cap in a separate post [see blog]. On June 11, 2018, the USCIS announced that it had received H2B petitions for more than 15,000 beneficiaries within five days of allowing filing under the extension [PDF version]. Thus, the USCIS used a random lottery to select enough petitions to meet the H2B cap for FY-2018. The H2B lottery was completed on June 7, 2018. The USCIS began issuing notifications to petitioners that were selected in this H2B lottery on June 11, 2018.

In its news release, the USCIS explained that it will reject and return with filing fees H2B petitions that were unselected in the H2B lottery and H2B cap-subject petitions that were filed after June 6, 2018.

H2B petitions that were selected in the H2B lottery and accepted for processing will have a receipt date of June 11, 2018. Accordingly, premium processing service for those petitions begins on June 11, 2018. Please see our article on the premium processing service for the Form I-129, Petition for Nonimmigrant Worker, to learn more about this subject [see article]. The USCIS added that only petitioners whose petitions were selected will receive receipt notices.

The USCIS explained that “[a] petition may be denied if [it] discovers, after a petition has been filed, that an original approved temporary labor certification was not submitted with the petition in accordance with the Form I-129 instructions, or if a petitioner requests more workers than were certified on the [temporary labor certification].” The USCIS will not refund fees for Form I-129 petitions that are denied due to the petitioner not having submitted an original approved temporary labor certification with the petition.

The USCIS continues to accept H2B petitions that are exempt from, or otherwise not counted toward, the H2B cap. Thus, these petitions are not affected by the foregoing points. H2B petitions that are not subject to, or otherwise exempt from, or not counted toward the H2B cap include:

• Current H2B workers seeking to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe producers, fish roe technicians, or supervisors of fish roe processing; and
• Workers performing labor or services in the Commonwealth of the Northern Mariana Islands and/or Guam, until December 31, 2019.

The H2B nonimmigrant visa program is a visa program that allows employers to employ foreign workers for temporary non-agricultural jobs, in accordance with the program rules and requirements. The H2A nonimmigrant visa program is a separate program for employing foreign workers for temporary agricultural jobs. We cover both of these programs and other nonimmigrant work visa programs in a full section on our website [see category].

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