U.S. Citizenship and Immigration Services (CIS) announced that the Departments of Labor (DOL) and Homeland Security (DHS) will publish a final rule on Wednesday, July 19, 2017, increasing the number of available H-2B nonimmigrant visas by up to 15,000 through the end of Fiscal Year 2017, which is September 30, 2017.

H-2B Visa Program
An H-2B visa is a temporary work visa for foreign workers with a U.S. job offer for seasonal, non-agricultural work in the United States. The H-2B visa program is open to nationals of countries designated by the U.S. Secretary of Homeland Security and is capped at 66,000 visas per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30).

One-Time Increase for Irreparable Harm
The cap on the number of visas for the second half of FY-2017 was reached earlier this year on March 13, 2017.  Section 543 of the FY 2017 Consolidated Appropriations Act granted Secretary Kelly the authority to increase the cap for the remainder of the fiscal year, and the CIS has been clear that this is a one-time increase based the discretionary authority granted by statute.  These additional visas are only available to U.S. employers who can establish that they will suffer irreparable harm if unable to employ all H-2B workers included in their petition for start dates from April 1, 2017 to September 30, 2017.  “Irreparable harm” has been defined as “permanent and severe financial loss.”

Procedure
On Wednesday, July 19th, CIS begins accepting additional H-2B petitions with employment start dates on or before September 30, 2017, and petitions will be reviewed and count against the additional 15,000 visas based on the order in which they are received.  CIS will reject any petitions received after September 15, 2017, or after the additional 15,000 visas have been allocated, whichever is sooner.

To file H-2B petitions under the 15,000 visa increase, U.S. employers must:

1. Meet all existing H-2B eligibility requirements, including obtaining an approved temporary Labor Certificate (TLC) from the DOL that is valid for the entire employment period stated on the petition;
2. Conduct a new round of recruitment for U.S. workers if the TLC contains a start date of work before June 1, 2017; and,
3. Submit an attestation affirming under penalty of perjury that the petitioner’s business will likely suffer irreparable harm if it cannot hire all of the requested H-2B workers before the end of the fiscal year.

Unless requested by the DHS or DOL, U.S. petitioners do not have to submit evidence of the irreparable harm if they are unable to employ all of the requested H-2B workers in their petition for three (3) years, but such evidence should be retained in support of the necessary attestation and may be requested at a later date.

Contact Foster Now to Determine Qualification and Proceed with Petitions
Employers who were unable due to the cap being reached to petition for all of their H-2B workers for a start date on or before September 30, 2017, are encouraged to contact their Foster attorney now to determine whether additional visa numbers may be available through a showing of irreparable harm.  Because of the short time frame involved and the limited numbers available, time is of the essence.  U.S. employers who wish to bring in seasonal workers on or after October 1, 2017, are also encouraged to contact their Foster attorney as soon as possible to design the recruitment and begin the multi-stage process before filing so that new petitions can be filed as soon as the new filing period begins.

Foster will continue to track developments within the H-2B program and provide future Immigration Updates via our Firm’s website at www.fosterglobal.com.