United States: Beginning May 18, 35,000 Additional H-2B Visas ...

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United States: Beginning May 18, 35,000 Additional H-2B Visas Become Available for Second Half of FY 2022

May 16, 2022

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At a glance

• Beginning May 18 and through September 15, 2022, employers will be able to petition for an additional 35,000 H-2B quota numbers for temporary non-agricultural positions with start dates on or after April 1, 2022 to September 30, 2022.
• The supplemental H-2B allocation consists of 23,500 visas available to returning workers who were granted an H-2B visa or have held H-2B status in fiscal years 2019, 2020, or 2021, and 11,500 visas for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they are H-2B returning workers.
• Petitioners must attest that their business is suffering irreparable harm or will suffer impending irreparable harm if they are unable to hire additional H-2B workers.

A closer look

Following the Department of Homeland Security’s (DHS) late March announcement to make 35,000 additional H-2B visas available for the second half of FY 2022, the agency today, jointly with the Department of Labor (DOL), announced that employers may petition for the new visas starting May 18, 2022 and continuing through September 15, 2022. The additional visas are designated only for H-2B positions with start dates on or after April 1, 2022 to September 30, 2022. Of the new supplemental visas, 23,500 will be available to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020 or 2021, while the remaining 11,500 will be reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they were previously granted an H-2B visa or status. A temporary rule implementing the supplemental visas will be published in the May 18 Federal Register; an advance copy is available.

Employers seeking H-2B workers must test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available for the offered positions; and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The supplemental increase will mean businesses seeking new H-2B workers will need to engage in additional recruitment efforts.

Employers will be required to attest that their business is suffering irreparable harm or will suffer impending irreparable harm without the additional workers. Employers will also be able to hire workers who are already present in the United States in H-2B status without waiting for approval of the new petition, subject to certain conditions.

Background

The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022. The FY 2022 omnibus spending law, which was enacted in March 2022, permits DHS to authorize additional H-2B nonimmigrant numbers beyond the fiscal year statutory quota. This number is in addition to the 20,000 supplemental H-2B visas made available in January of 2022 for the first half of FY 2022, for petitions with start dates on or before March 31, 2022. The new increase applies to FY 2022 only and does not affect the H-2B program in future fiscal years.

Filing instructions

To qualify for the additional H-2B visas, employers must submit the following to USCIS on or before September 15, 2022:

• USCIS Form I-129 , Petition for a Nonimmigrant Worker, requesting an employment start date on or after April 1 through September 30, 2022;
• Evidence that the employer meets all H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from DOL that is valid for the entire employment period stated on the petition);
• An attestation on DOL Form ETA-9142-B-CAA-6 affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employee returning workers only, unless the H-2B worker is a foreign national counted towards the 11,500 cap for the four designated countries. Employers should note that this is a new edition of the attestation form, and that previous years’ editions will not be accepted; and

• Attest on the DOL form to comply with all applicable labor employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations, and notify the workers in a language understood by the worker, as necessary or reasonable, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

In addition, if Form I-129 is filed 30 or more days after the certified start date on the TLC, the employer must attest to engaging in certain specified additional steps to recruit U.S. workers.

Retaining documentation of irreparable harm and other attestation requirements

Employers are not required to submit evidence of irreparable harm with their H-2B petitions, but must retain supporting documentation on file for three years from the labor certification approval date, demonstrating that the employer would be unable to meet financial obligations and suffer permanent and severe financial loss without additional H-2B workers. Such documentation must be made available, along with documentation supporting all of the H-2B attestation requirements, to the DHS or DOL in the case of an audit or investigation. If, after an audit or investigation, DHS or DOL finds that the employer's documentation does not support the attestations, the employer may be debarred from the H-2B program, have their H-2B petitions denied or revoked, or become subject to criminal penalties.

What this means for employers

Employers with FY 2022 H-2B employment needs should work with their immigration counsel to submit petitions as soon as possible before the additional cap numbers are exhausted. Additional visas will not be available in future years unless a similar supplement is authorized.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.

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