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

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H-1B Visa Processing

The Department of Homeland Security (DHS) and the Department of Labor (DOL) announced a temporary final rule (TFR) to make available 35,000 extra H-2B nonagricultural worker visas during the second half of the fiscal year 2022. These additional H-2B Visas are for U.S. employers who attest that they are suffering or will suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition, and who need to fill positions with start dates on or after April 1, 2022, through Sept. 30, 2022.

The temporary last rule makes up to 23,500 visas available to returning workers who received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas are excluded from the returning worker requirement, as attested by the petitioner (regardless of whether such nationals are returning workers). DHS made an advance announcement for this temporary final rule in March.

Also, the rule grants portability to specific H-2B workers by allowing H-2B nonimmigrant workers currently in the United States. To start work with employment with a new H-2B employer or agent once. USCIS gets a timely filed, non-frivolous H-2B petition but before the petition is approved.

35,000 Additional H-2B Visas were Available for the 2nd Half

DHS will subject employers that have committed specific labor law violations in the H-2B program. To extra scrutiny in the supplemental cap petition process. This additional scrutiny is aimed at ensuring compliance with H-2B program requirements and obligations.

The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on 25th February 2022. The FY 2022 omnibus spending regulation, which was enacted in March 2022. Permits DHS to approve extra 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 should submit the following to USCIS on or before September 2022:

  • USCIS Form I-129, Petition for a Nonimmigrant Worker, requesting an employment start date on or after April 1 through 30th September 2022;
  • Proof 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 can’t hire the requested H-2B workers. And that it is looking for an employee returning workers only unless the H-2B worker is a foreign national counted towards the 11,500 caps 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 about 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.

Moreover, 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 proof of irreparable harm with their H-2B petitions. Yet should retain supporting documentation on file for three years from the labor certification approval date. Demonstrating that the employer would not be able to meet financial obligations and suffer permanent and severe financial loss without additional H-2B workers. Such documentation should be made available. Along with documentation supporting all of the H-2B attestation requirements.

[Senators introduce a bill that would toughen H-1B visa usage]

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 doesn’t support the attestations. The employer might be debarred from the H-2B program, and have their H-2B petitions denied, 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 extra cap numbers are exhausted. Extra visas won’t be available in future years unless a similar supplement is authorized.

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