As the H-2B visa becomes more popular, the annual allotted cap of 66,000 visas often fails to meet the demand. To address the sheer volume of H-2B applications it receives, the Department of Labor uses a system of randomized selection to determine the order in which it processes the applications. This system is commonly referred to as the H-2B lottery.
In this article, we explain the why and how of the H-2B lottery process, as well as options for employers who “lose” the lottery.
Background
As with most visas, there are only a limited number of H-2B visas available every year. Exceptions aside, the general H-2B annual cap is 66,000. Half of that total, 33,000, is reserved for temporary work that start in the first half of a fiscal year (10/1 to 3/31). The other 33,000 is reserved for the second fiscal year half (4/1 to 9/30).
H-2B application is a complicated process involving dealings with several government agencies – agencies under the Department of Labor, USCIS, and U.S. consular offices under the Department of State. Amongst those agencies, USCIS has the practical authority to grant H-2B visa spots to employers.
Spots are granted on a first come, first served basis. Every time USCIS approves a cap-subject H-2B petition (via form I-129), they remove the requested number of visas from the total. For example, if the very first H-2B petition USCIS approves in the first half of FY 2024 requests for 30 total H-2B spots, USCIS will remove 30 from the total allotted 33,000. Only 32,970 spots remain in the first half of FY 2024. This process is repeated with every approved petition until the available spots reach zero. USCIS will then make an announcement such as this one, stating that spots are all filled, and any cap-subject H-2B petitions received after a certain date will be returned.
Given USCIS’s methods, it is clearly advantageous to submit H-2B petitions as early as possible. This is why, 90 days before the start of each fiscal year half, also the earliest possible time to begin the H-2B application process, the Department of Labor (“DOL”) would be flooded with applications for temporary labor certifications.
H-2B Lottery Process
Submission Period for ETA-9142B, Application for Temporary Labor Certification (“TLC”)
DOL accepts TLC applications electronically through its FLAG system. To account for possible slowdowns, freezes, or server crash caused by large volume of electronic submissions, DOL stretches the initial submission period to three days. All TLC applications received during such three-day period are considered to be submitted at the same time.
For FY 2023, submission periods were January 1-3 and July 3-5.
Group Assignment for TLC Applications
Once the submission period ends, DOL randomly places all TLC applications into groups. Groups are ordered by alphabet, starting with “A.” Group A has TLC applications that, combined, request for a total of 33,000 visa spots. Subsequent groups – B, C, D, and so on – each contain about 1000 applications that request for a total of no more than 20,000 visa spots. DOL will begin by processing all the TLC applications in group A. After issuing Notice of Acceptance or Notice of Deficiency to each group A application, DOL then moves on to group B and subsequent groups.
If an employer is assigned to group A, the visa spots are theirs to lose. Their TLC applications are adjudicated first, so they get the earliest chance to obtain the TLC. With TLC in hand, group An employers may then submit the I-129 to USCIS and get the approval before anyone else. Be mindful that being assigned to group A is not a guarantee for H-2B success. Employers still need to timely respond to any Notice of Deficiency from DOL and submit a thorough H-2B petition to USCIS.
Group B may still have a chance, because not all group A employers respond to Notice of Deficiency on time. Some group A employers do withdraw their applications. Each group after B, however, have smaller and smaller chance of getting H-2B visa spots.
What Happens If an Employer is Assigned to a Later Group?
Stay the Course
There is advantage to staying the course. Starting January 2023, DOL began assigning “temporary need registration numbers” to employers who submit TLC applications. Once assigned and activated, this registration number remains effective for up to three years. Employers with successful TLC applications in the past may offer this number in future applications as an additional piece of evidence, potentially speeding up future adjudications.
Employers who are assigned to later groups may elect to continue the process, respond to Notice of Deficiency and conduct recruitment as instructed in the Notice of Acceptance. Even though continuing may not result in H-2B visas this year, employer may save some hassles in future years. The downside for continuing the process is more money and time spent. Employers who wish to terminate the process may withdraw their applications.
Try for Supplemental Visa Spots
While not a guarantee, DHS and DOL sometimes provide supplement visas to the H-2B cap. In FY 2023, 64,716 supplemental visas were added, but they came with certain conditions. Spots are reserved for returning workers who had H-2B status anytime during the previous three years. Alternatively, workers from El Salvador, Guatemala, Honduras, and Haiti could use the supplemental visa spots irrespective of previous H-2B status.
It is not clear whether similar conditions will apply in future supplemental visas. Employers who wish to utilize this option should be prepared to work with their attorneys.
Apply for Cap-Exempt H-2B Visa
Certain H-2B workers are exempt from the annual cap.
An employer may apply for visa spots intended for workers who are already in the U.S. under lawful H-2B status, and who are looking to extend their H-2B stay by transferring to another temporary position.
Employer may also apply for workers who were in the U.S. under H-2B status in the same fiscal year. For example, a landscaping/snow removal company hired some workers to fulfill snow removal contracts in the winter. The following Spring, the same company may try to hire the same workers to return and help with landscaping work. Because the workers already counted against the H-2B cap during the first half of the same fiscal year, positions reserved for these workers are not counted against the cap.
Two other categories of workers are H-2B cap exempt. “Fish roe processors, fish roe technicians, or supervisors of fish roe processing” and “Workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam until Dec. 31, 2029.”
Further Reading
We hope you find this information helpful. For more on the H-2B visa, including timeline and employer obligations, visit our blog. If you have other questions, contact us.