USCIS reaches H-2B cap for first half of FY 2021

Updates policy to deny naturalization to those not lawfully admitted for permanent residence.

US Citizenship and Immigration Services (USCIS) will reject new H-2B petitions as it has reached the congressionally mandated cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2021.

US businesses use the H-2B program to employ foreign workers for temporary nonagricultural jobs. Currently, Congress has set the H-2B cap at 66,000 per fiscal year.

The cap is set at 33,000 for workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and 33,000 (plus any unused numbers from the first half of the fiscal year) for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30).

READ: Covid-19: H-2B visa holders can get 60-day work permits (May 13, 2020)

USCIS announced Friday it will reject new cap-subject H-2B petitions received after Nov. 16, that request an employment start date before April 1, 2021 as that was the final receipt date for such petitions.

On Nov. 16, the number of beneficiaries USCIS received petitions for surpassed the total number of remaining H-2B visas available for the H-2B cap for the first half of FY 2021, it said.

USCIS said it conducted a lottery on Nov. 18 to randomly select petitions from those received on Nov. 16 for fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the cap for the first half of FY 2021.

Premium processing service for petitions selected in the lottery also began on Nov. 18.

READ: USCIS reaches H-2B visa cap for the first half of the fiscal year 2018 (December 27, 2017)

USCIS said it continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes current H-2B workers in the US who are extending their stay and, if applicable, changing the terms of their employment or changing their employers.

Meanwhile, USCIS has also updated policy guidance in the USCIS Policy Manual to clarify the circumstances under which applicants would not be ineligible for naturalization  because they were not lawfully admitted for permanent residence.

Applicants are ineligible for naturalization if they obtained lawful permanent residence (LPR) status in error, by fraud or otherwise not in compliance with the law, it said.

The update also clarifies that USCIS will review whether applicants have abandoned their LPR status when their naturalization application was being adjudicated.

READ: H-1B may be toxic in Washington, but not its sister visa program H-2B (May 2, 2017)

USCIS said If an applicant does not meet the burden of establishing that they maintained LPR status, it generally denies the naturalization application and places the applicant in removal proceedings by issuing a Notice to Appear (NTA).

USCIS also clarified that it generally denies a naturalization application filed on or after the effective date if the applicant is in removal proceedings pursuant to a warrant of arrest.


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