On May 25, 2018, the U.S. Department of Homeland Security (DHS) announced a temporary rule with the U.S. Department of Labor (DOL) which was released on May 31, 2018, to increase the number of available H-2B nonimmigrant visas by up to 15,000 through the end of Fiscal Year 2018, which is September 30, 2018. This is the second consecutive year that DHS made the determination in the second half of the fiscal year to increase the number of available visas in this category.
H-2B Temporary Non-Agricultural Worker Visa Program
An H-2B visa is an employment-based, nonimmigrant 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 available only to nationals of countries designated by the U.S. Secretary of Homeland Security with a cap on the number of available visas per fiscal year of 66,000, distributed as follows:
- 33,000 allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31); and,
- 33,000 allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30).
One-Time Increase for Irreparable Harm
The cap of 33,000 visas was reached on February 27, 2018, for employment beginning in the second half of FY 2018 from April 1 – September 30.
Section 205 of Division M of the Consolidated Appropriations Act, 2018, granted Secretary Nielsen the authority to increase the cap for the remainder of the fiscal year, and DHS 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 meet all H-2B eligibility requirements and 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, 2018 to September 30, 2018. “Irreparable harm” has been defined as “permanent and severe financial loss.”
In the announcement, DHS called upon Congress to reform the H-2B Temporary Non-Agricultural Worker Visa Program to “expressly set” the number of visas available under this category, stating that “Congress has passed the buck” by granting DHS discretion to increase the number of available visas.
Beginning on May 31, 2018, CIS will accept additional H-2B petitions with employment start dates on or before September 30, 2018, and petitions will be reviewed and counted against the additional 15,000 visas by the order received. CIS will reject any petitions received after September 14, 2018, or after the additional 15,000 visas have been allocated, whichever is sooner.
To file H-2B petitions to benefit under the 15,000 visa increase, U.S. employers must:
- Meet all existing H-2B eligibility requirements, including obtaining an approved temporary labor certification (TLC) from the DOL that is valid for the entire employment period stated on the petition;
- Conduct a new round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018; and,
- 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 until September 30, 2021, in support of the necessary attestation and may be requested at a later date.
Contact Foster Now to Assess Eligibility and Move Forward 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, 2018, should contact their Foster attorney now to determine whether additional visa numbers may be available through a showing of irreparable harm. Time is of the essence due to the short timeframe involved and the limited visas available. U.S. employers who wish to bring in seasonal workers on or after October 1, 2018, should contact their Foster attorney as soon as possible to develop the recruitment and start the multi-stage, pre-filing procedure so that new petitions are ready to be filed when the new filing period opens.