Today, The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2022 authority and again increasing the total number of foreign nationals who may receive an H-2B nonimmigrant visa by authorizing the issuance of no more than 35,000 additional visas during the second half of FY 2022 for positions with start dates on or after April 1, 2022, through September 30, 2022. This relief is being provided to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form (ETA-9142-B-CAA-6) as the country is now facing an extreme labor shortage. The 35,000 visas are to be distributed as follows:
- 23,500 visas for returning workers only, regardless of nationality (i.e., held an H-2B visa or granted H-2B status in fiscal years 2019, 2020, or 2021)
- 11,500 visas reserved for nationals of Haiti and the Northern Triangle countries (El Salvador, Guatemala, and Honduras), regardless of whether they are returning workers.
Unlike the Summer 2021 cap relief, if the 11,500 visas reserved for Haiti/the Northern Triangle countries are not fully used, DHS will not make the unfilled visas available to the general returning-worker cap. Instead, those visas will simply expire.
To qualify for the FY 2022 supplemental cap provided by this temporary final rule, eligible petitioners must:
- Meet all existing H-2B eligibility requirements, including obtaining an approved temporary labor certification from DOL before filing the Form I-129, Petition for Nonimmigrant Worker, with USCIS;
- Properly file the Form I-129, Petition for Nonimmigrant Worker, with USCIS on or before September 15, 2022 requesting an employment start date on or after April 1, 2022, through September 30, 2022
- Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H-2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H-2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 11,500 cap exempt from the returning worker requirement; and
- For returning workers only: sign an attestation that all workers are “returning workers” (i.e., held an H-2B visa or H-2B status in the 2019, 2020, or 2021 fiscal year).
- For nationals of Haiti/the Northern Triangle countries only: attest that the worker is a national of Haiti, Guatemala, El Salvador, or Honduras.
Compliance. The rule further mentions that employers filing petitions to request supplemental visas will be subject to increased likelihood of a random audit to confirm compliance with the H-2B regulations, including the “irreparable harm” and “returning worker” requirements. The employer must attest on Form ETA-9142-B-CAA-6 that it will fully cooperate with any audit, investigation, compliance review, evaluation, verification, or inspection conducted by DOL, including an on-site inspection of the employer’s facilities, interview of the employer’s employees and any other individuals possessing pertinent information, and review of the employer’s records related to the compliance with applicable laws and regulations as a condition for the approval of the H-2B petition. Pursuant to regulations, the employer will not impede, interfere, or refuse to cooperate with an employee of the Secretary who is exercising or attempting to exercise DOL’s audit or investigative authority.
Portability. In addition to making the additional 35,000 visas available under the FY 2022 time-limited authority, DHS is exercising its general H-2B regulatory authority to again provide temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved. The provisions related to portability are only available to petitioners and H–2B nonimmigrant workers initiating employment through the end of January 24, 2023.
Additional Recruitment. The Department of Homeland Security is also requiring employers to re‐advertise these positions to U.S. workers before filing if 30 or more days have elapsed after the certified start date of work on the labor certification. The reason for requiring employers to re‐recruit U.S. workers is that the Department of Labor’s labor certifications have become “stale” since it is now seven weeks after the workers were supposed to arrive. Therefore, this will likely apply to all employers with start dates prior to April 19, 2022. This additional recruitment will include placing a new job order for the job opportunity with the State Workforce Agency for 15 calendar days, circulating the job order to the nearest American Job Center, post notice of the job opportunity at the anticipated worksite, and making reasonable efforts to contact former U.S. workers to solicit their return.
Timeline. Given the dire labor shortages nationwide, we anticipate that there will be high demand for these additional 35,000 visas, especially the 23,500 visas available for returning workers of any nationality. Therefore, it is possible that there will be a lottery for these visas if more than 23,500 visas are requested. If there is a lottery, DHS will place all H-2B petitions received within the first five (5) business days after the first day of filing into the lottery. Therefore, all petitions received by DHS between May 18th and May 24th would be entered into the lottery with equal chances. We will likely not know whether a lottery will take place until late-May or the beginning of June.
Although the rule comes twelve weeks after employers filed for the cap and seven weeks after H‑2B workers were supposed to arrive, the decision to increase the cap by a record amount is very positive and provides U.S. Employers some relief from its workforce shortage. If you have additional questions about the H-2B visa, please contact Yelena Vilk and Shahana Farishta at our firm to help you with your temporary seasonal visa needs.