USCIS announced June 7 it had received sufficient petitions to reach the recently allocated 30,000 additional returning worker H-2B visas (see our related May 8 post here). Some commenters had noted that the returning worker and the “irreparable harm” attestation requirements required under the additional allocation might suppress utilization. Even with the additional requirements, U.S. employers maintained demand for the increased resources in one month’s time.

Here is the June 7 USCIS statement:

Cap Reached for Additional H-2B Visas for FY 2019

USCIS has received enough petitions to reach the additional maximum 30,000 visas made available for returning workers under the H-2B numerical limit (also called a cap) for fiscal year (FY) 2019.

As previously announced, USCIS began accepting H-2B petitions on May 8 under the temporary final rule increasing the cap by up to 30,000 additional H-2B nonimmigrant visas for returning workers through the end of FY 2019.

USCIS will reject and return any cap-subject petitions received after June 5, together with any accompanying filing fees.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and Please contact your GT attorney with questions and please check back as this matter and others will be updated as information becomes available.
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

Please contact your GT attorney with questions, and please check back as this matter and others will be updated as information becomes available.

For more on H-2B visas, click here.

Today, May 8, 2019, after much anticipation, the Departments of Homeland Security and Labor posted a joint rule in the Federal Register providing 30.000 additional seasonal workers for American businesses. 

Based on interest, we also provide a link to the Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers released to facilitate the process. 

Please consult your GT attorney for additional information and check back here for updates.

For more on H-2B visas, click here.

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On May 6, the U.S. Departments of Homeland Security and Labor issued a prepublication of the joint temporary rule setting forth the process for accessing 30,000 additional H-2B visas. It is expected that on formal publication of the rule in the Federal Register May 8, eligible U.S. employers documenting returning worker status (over the last three fiscal years) and irreparable harm standards can start the application process for designated and qualified additional workers. 

Please refer to the temporary rule for additional details, or contact your GT attorney. Return to the Inside Immigration blog for additional information on this and other subjects.

For more on H-2B visas, click here.

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On April 30, the Office of Management and Budget (OMB) announced the completion of its review of the regulation providing additional H-2B for fiscal year 2019-

Agency: DHS-USCIS

RIN: 1615-AC38

Status: Concluded

Title: Exercise of Time-Limited Authority to Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

Stage: Final Rule

Economically Significant: No

Received Date: 04/22/2019

Legal Deadline: None

** COMPLETED: 04/30/2019

Completed Action: Consistent with Change

OMB approval of the final rule allows DHS to move forward with publication of a final rule and expected release of the additional H-2B visas in the near future.

Please check back as this matter and others are updated when information becomes available.

For more on H-2B visas, click here.

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Following up on a previous report, the Department of Homeland Security forwarded a final H-2B Rule to the White House Office Of Management and Budget on April 22 (see below). Once OMB completes review, a final rule will be published in the Federal Register for implementation.

Agency: DHS-USCIS

RIN1615-AC38

StatusPending Review

Title: Exercise of Time-Limited Authority to Increase the Fiscal Year 2019 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program

Stage: Final Rule

Economically Significant: No

Received Date: 04/22/2019

Legal Deadline: None

Please check back, as more information on this and other matters will be published as available.

For more on H-2B visas, click here.

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Amid a flurry of media reports last week and verified today by U.S. Sen. Chris Van Hollen (D-MD), Homeland Security Secretary Kirstjen Nielsen announced the availability of 30,000 additional H-2B visas for 2019 seasonal employment. Several years ago, Congress gave the DHS Secretary, in consultation with the Department of Labor, the authority to augment H-2B seasonal visas up to a cap (66,000 per/yr). The Secretary has allowed 15,000 additional H-2B visas in the past two years. This doubling of the allotment comes with a returning worker requirement. That means only those H-2B visa holders who previously held visas in the past three years are eligible to participate in the 30,000 allotment.

The Secretary continues to encourage Congress to pass legislation determining the number of seasonal H-2B visa holders per year. In the interim, many in Congress have encouraged the Secretary to use her discretion, as she did today, to increase H-2B visas to eligible individuals.

The number of additional visas and timing pleasantly surprised many observers. The President has discussed the need for additional workers in speeches recently, and his remarks are believed to have had an effect on today’s announcement.

Sec. Nielsen indicated that a formal announcement of this action will be in an upcoming Federal Register.  Please check back, as we will update this and other posts.

For more on H-2B visas, click here.

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Today, Secretary of Homeland Security, Kirstjen Nielsen, announced an additional 15,000 H-2B temporary nonagricultural visas will be available for Fiscal Year 2018.  DHS had been under political pressure to release additional H-2B visas by businesses and industry groups citing labor workforce needs.  Groups had been calling for the immediate release of additional H-2Bs to help meet workforce needs in the tourism industry, among others.

Continue Reading DHS Announces Additional 15,000 H-2B Visas for 2018

On August 18, 2017, Rosanna Fox, shareholder in the Immigration & Compliance Practice, spoke on a panel at the 2017 AILA PERM/H-2B Practice Conference, hosted by the American Immigration Lawyers Association, in Seattle, WA. The discussion was entitled “Prevailing Wage Issues: Being Proactive Pays Off!” In most PERM cases, obtaining the prevailing wage is the initial step in the process and must be done correctly the first time due to ever-increasing processing times. The speakers provided insight on how OFLC has been handling prevailing wage requests based on stakeholder meetings. They also addressed how to use current guidance to minimize uncertainty, and how to be proactive to avoid RFIs and other processing delays. For more information click here.

The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and willing U.S. workers available to U.S. businesses for the remainder of the fiscal year and that these businesses may suffer “irreparable harm” if they are unable to hire additional workers.

The annual cap for H-2B visas is 66,000, with half available during the first half of the fiscal year, and the remainder available during the latter half. The annual cap of 66,000 was reached on March 13, 2017, and in May 2017 Congress delegated authority to the DOL to determine whether the numbers should be increased. With the additional 15,000 visas added, employers, who can begin submitting petitions this week, will need to attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B workers for the 2017 fiscal year. This attestation will appear on the form that will be filed with the petition. There has also been a new tip line to report general H-2B abuse and employer violations and the information can be submitted to ReportH2BAbuse@uscis.dhs.gov.

On April 15, 2015, Chief Judge M. Casey Rodgers of the federal district court in the Northern District of Florida extended the stay discussed in a March 18, 2015, blog post until May 15, 2015, thus allowing the Department of Labor (DOL) to continue accepting and processing H-2B prevailing wage and temporary labor certification applications.

DOL submitted its final rules on H-2B wage methodology and its H-2B comprehensive rule to the Office of Management and Budget on April 13, 2015.