The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augment their existing labor force with temporary workers. The H-2B visa category also allows U.S. employers to augment their existing labor force when necessary due to a one-time occurrence which necessitates a temporary increase in workers. Typically, H-2B workers fill labor needs in occupational areas such as construction, health care, landscaping, lumber, manufacturing, food service/processing, and resort/hospitality services.

On May 25, 2005, U.S. Citizenship and Immigration Services (USCIS) began accepting additional petitions for H-2B workers as required by the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act). The SOS Act allowed USCIS to accept filings beginning May 25, 2005 for two types of H-2B workers seeking work start dates as early as immediately:

For FY 2005 and 2006: All eturning workers,?meaning workers who counted against the H-2B annual numerical limit of 66,000 during any one of the three fiscal years preceding the fiscal year of the requested start date. This means:

• In a petition for a work start date before October 1, 2005 (FY 2005), the worker must have been previously approved for an H-2B work start date between October 1, 2001 and September 30, 2004.
  
• In a petition for a work start date on or after October 1, 2005 (FY 2006), the worker must have been previously approved for an H-2B work start date between October 1, 2002 and September 30, 2005.

If a petition was approved only for xtension of stay?in H-2B status, or only for change or addition of employers or terms of employment, the worker was not counted against the numerical limit at that time and, therefore, that particular approval cannot in itself result in the worker being considered a eturning worker?in a new petition. Any worker not certified as a eturning worker?will be subject to the numerical limitation for the relevant fiscal year.

What is the H-2B numerical limit set by Congress?

The numerical limit refers to the number of visas issued by Department of State (DOS) to first-time workers and to the number of persons changing to H-2B status determined by USCIS. For FY 2006, the total annual numerical limit or cap is 66,000. Approximately 99 percent of the cap is made up of visas.

Why does USCIS authorize more H-2B workers than the statutory limit?

Employers often decide after submitting a H-2B petition that the workers are no longer needed. However, USCIS still processes these petitions (notification from employers that workers are no longer needed is rare) and sends the approved petitions to DOS for consular processing. If the employers no longer request these workers, DOS will not issue visa for these workers. As a result, workers authorized to work by USCIS will exceed the number of visas issued---the basis of the statutory limit. Another factor is that DOS denies some visas even though USCIS has approved petitions for these workers.

1 Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.
2 A shortfall in the 1st half would be made up in the 2nd half.
3 Visas issued to 1st-time beneficiaries plus 1st-time beneficiaries changing status already in the United States.

H-3

An H-3 is an alien temporarily participating in a special education training program in the education of children with physical, mental, or emotional disabilities. As of May 23, 2006, a total of 6 H-3s had been approved in FY 2006. The regulatory limit is 50 per fiscal year.