Additional 15,000 H-2B Visas Available for the Remainder of FY2018

May 31, 2018

On May 31, 2018, the Department of Homeland Security and the Department of Labor published a joint temporary rule in the Federal Register increasing the H-2B cap for the remainder of FY2018 by an additional 15,000 visas. The rule is effective from May 31, 2018, through September 30, 2018, with the exception of document retention provisions effective through September 30, 2021. Eligible petitioners will be required to complete Form ETA-9142-B-CAA-2, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 205 of Division M of the Consolidated Appropriations Act, certifying that their business is likely to suffer irreparable harm if unable to employ the requested H-2B workers. Form ETA-9142-B-CAA-2 and its instructions are available on the U.S. Department of Labor website.

Details on eligibility and filing requirements are available in the final temporary rule published today in the Federal Register and on the Increase in H-2B Nonimmigrant Visas for FY2018 webpage. AILA members should also refer to the clarifications that the Department of Labor and Service Center Operations (SCOPS) provided to AILA in 2017 when a similar number of H-2B visas were made available for FY2017.

USCIS will stop accepting petitions under this increase on September 14, 2018, or after the cap is reached, whichever occurs first. USCIS will reject any petitions received after September 14, 2018, or after the cap is reached, whichever is earlier. Petitions not approved before October 1, 2018, will be denied and any fees will not be refunded.

May 25, 2018

On May 25, 2018, the Secretary of Homeland Security announced that up to an additional 15,000 H-2B visas will be available for the remainder of fiscal year (FY) 2018. This allocation is in addition to the 66,000 visas already issued this year. The authority for the DHS Secretary to increase the number of H-2B visas available to U.S. employers through September 30, 2018 was delegated to the DHS Secretary by Congress in the FY2018 Omnibus. This increase is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years. This authority is similar to the authority that was granted to the DHS Secretary during the previous fiscal year, FY2017, under the FY2017 Omnibus.

Starting this week, eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker. Employers will be required to complete Form ETA-9142-B-CAA-2, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 205 of Division M of the Consolidated Appropriations Act, certifying that their business is likely to suffer irreparable harm if unable to employ the requested H-2B workers.

Details on eligibility and filing requirements will be available in the final temporary rule which is scheduled to be published in the Federal Register on Thursday, May 31, 2018, as well as on the USCIS website once the final temporary rule is published. An advance copy of the temporary rule increasing the H-2B cap for the remainder of FY2018 has been made available to the public and is scheduled to be published in the Federal Register on Thursday, May 31, 2018.

According to the advance copy of the temporary rule, to qualify for the additional H-2B visas, employers must establish that the employer will experience irreparable harm if it cannot hire the required H-2B workers. DHS has defined “irreparable harm” as permanent and severe financial loss. DHS also interprets the “needs of the American businesses” as different from the “temporary need” requirement usually required of employers who petition for H-2B workers. In addition, the employer must meet the following requirements:

1. The employer must have a valid temporary labor certification, and the date on the employer’s visa petition must not be later than last day of authorized employment on the labor certification
2. Individuals in the U.S. cannot seek a change of status from another nonimmigrant status pursuant to the additional 15,000 H-2B numbers. However, the petition can be approved for consular processing as the rule permits the issuance of H-2B visas.
3. The employer must complete an additional appendix, ETA 9142-B-CAA-2, Attestation for Employers Seeking to Employ H-2B Nonimmigrants Workers Under Section 205 of Division M of the Consolidated Appropriations Act. In signing the ETA 9142-B-CAA-2, the employer attests that it will likely suffer irreparable harm, defined as permanent and severe financial loss. Supporting documentation need not be submitted to USCIS but must be retained for three years and presented in the event of an audit. Documentation may include evidence that the business is not able to or would not be able to meet financial or contractual obligations, that the business is unable to pay debts or bills, or that the business will suffer or has suffered a financial loss. Evidence may include but is not limited to:
   1. Financial statements (including profit/loss statements) comparing present period of need as compared to prior years;
   2. Bank statements (past and present);
   3. Tax records to show current or past situations;
   4. Employment records;
   5. Evidence showing number of workers needed in the past and the present; or
   6. Evidence showing number of H-2B workers in past seasons, requested, actually employed, offered hours, and worked hours.
4. Employers with start date before April 15, 2018, must also conduct a fresh round of recruitment for U.S. workers:
   1. Place a new job order with the State Workforce Agency (SWA) serving the area of intended employment that contains the job assurances and contents set forth in 20 CFR §655.18 for recruitment of U.S. workers, and post at the place of employment for at least 5 days beginning not later than the next business day after submitting the I-129 Petition and the accompanying attestation to USCIS;
   2. Place one print or online newspaper advertisement, which may be published on any day of the week, meeting the advertising requirements of 20 CFR §655.41, during the period of time the SWA is actively circulating the job order for intrastate clearance; and
   3. Offer the job to any qualified and available U.S. worker who applies or is referred for the job opportunity until two business days after the last date on which the job order is posted.
5. All advertising must be retained for 3 years from date of the ETA 9142B certification.
6. H-2B employers must retain documents and records demonstrating compliance with the advertising requirements to provide to DHS or DOL upon audit or request pursuant to new 20 CFR §655.65.

DHS has indicated that H-2B petitions submitted pursuant to the FY2018 Omnibus will be processed in the order in which they are received. Petitioners may choose to request premium processing of their petition. Petitions pending with USCIS that are not approved before October 1, 2018, will be denied and fees will not be refunded.

Source: AILA Doc. No. 18052901.