Is H-2B Cap Relief Too Little, Too Late? Consider the October Strategy

It’s no secret that the demand for H-2B visas exceeds the available supply several times over. In the most recent “lottery” for the April 1 visa allotment, the U.S. Department of Labor (DOL) received almost 9,000 applications representing more than 138,000 job positions – more than quadruple the 33,000 visas allotted to this half of the fiscal year. 

In practice, this means that a Group A or B lottery result is essential for employers to have a shot at the normal cap allotment, as DOL will have barely scratched the surface of the later lottery groups by the time U.S. Citizenship and Immigration Services (USCIS) makes the announcement. To stand a chance at workers in the Spring or Summer, employers in the later lottery groups have no choice but to pursue the supplemental “cap relief” visas made available by USCIS on a discretionary basis. But while “cap relief” visas remain a popular option, there are strings attached.  

For example, of the total supplemental visas made available, the largest allotment (20,000) is available exclusively to nationals of the Northern Central America (NCA) countries (formerly “Northern Triangle”). This includes the countries of El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica. Employers who want to recruit their workers from Mexico – the largest and most popular H-2B source country – will be unable to take advantage of these visas.  

Another allotment of 19,000 visas is indeed available to workers from Mexico (and any other eligible country), but only if such workers are considered “returning.” To qualify as a returning worker, the worker must have been issued an H-2B visa or held H-2B status within the last three fiscal years. While an excellent option for long-time program users, this cap relief allotment may be inaccessible to new program users who are unable to locate enough eligible workers.  

But there is another option that employers may consider in lieu of cap relief – the October Strategy. With the October Strategy, employers reapply for H-2B workers beginning October 1, the first day of the new fiscal year (and thus subject to a new visa allotment), allowing them to bring those same workers back the following Spring on a cap-exempt basis.

The strategy relies on two primary factors: 

1. Decreased Fall Visa Demand. Unlike the Spring visa allotment, the Fall visa allotment is far less competitive. This means that employers requesting an October 1 start date are highly likely to get workers under the regular cap allotment.

AND

2. Cap Exempt Status. Workers who are counted against the cap in given fiscal year will not be counted against the cap a second time for subsequent employment within the same fiscal year. This means workers issued a visa in October will be able to return the following Spring, regardless of visa availability under the cap. 

To illustrate, imagine a commercial landscaper that requests workers from April 1, 2024 until December 15, 2024. The employer, however, receives a bad lottery result and is unable to secure workers. Instead of attempting to obtain workers through cap relief, the employer chooses to surrender its H-2B labor certification and re-apply for the period of October 1 through December 15 – the tail end of the season.  

In this example, the workers who arrive in October will be cap exempt for the employer’s subsequent season (April 1 through December 15, 2025). This means that a poor lottery result will not preclude the employer from at least bringing these workers back. It's easy to see, then, why this strategy remains a popular option for employers with significant labor needs in the fall months (for example, landscapers with significant leaf clean-up work) who wish to hedge against a possible bad lottery result in the future by having key workers obtain cap exempt status.  

Nevertheless, orchestrating the October Strategy without a hitch is not without its challenges. There are many complexities to the process and additional steps that must be taken relative to the normal filing process. For this reason, you should always consult with an expert who can advise you on not only whether the strategy is a right fit for your circumstances, but provide the guidance and expertise needed to maximize your chance of a successful outcome. 

Contact másLabor today to learn more about this and other H-2B strategies.