H-2B Visa Allocation: Starting 28th January and through 31st March 2022, employers will be able to petition for an additional 20,000 H-2B quota numbers for temporary non-agricultural positions with start dates on or before 31st March 2022.
The U.S. Department of Homeland Security (DHS) along with the U.S. Department of Labor (DOL) gave a joint temporary final rule to increase the number of H-2B temporary nonagricultural worker visas for fiscal year (FY) 2022 making available an additional 20,000 visas. These extra visas are for U.S. employers, which bear witness to that they are suffering irreparable harm, or will suffer impending 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 before 31st March 2022.
H-2B Visa Allocation
The supplemental H-2B visa allocation comprises 13,500 visas available only to returning workers who received an H-2B visa or were generally granted H-2B status. During one of the last three fiscal years (FY 2019, 2020, or 2021). The remaining 6,500 visas are absolved from the returning worker requirement. Which are saved for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Central American Countries), as well as for nationals of Haiti.
Returning H-2B workers have demonstrated their ability to abide by the terms and conditions of the H-2B program and, therefore, are less likely to stay in the United States and work without authorization after their legal status expires. H-2B workers often return to a similar employer year after year on a seasonal basis. They are vetted and trusted and can have their visas approved rapidly because of their known history.
Also, the rule grants portability to specific H-2B workers by allowing H-2B nonimmigrant workers. Currently in the United States to starting work 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.
To qualify for the extra H-2B visas, employers should submit the following to USCIS on or before 31st March 2022:
- USCIS Form I-129, Petition for a Nonimmigrant Worker, requesting an employment start date on or before March 31, 2022;
- Proof that the employer meets all H-2B eligibility requirements (including acquiring an approved temporary labor certificate (TLC). From DOL that is valid for the whole employment period stated on the petition);
- If Form I-129 is filed 45 or more days after the certified start date on the TLC. Proof that the employer has conducted a new round of recruitment for U.S. workers;
- An attestation on DOL Form ETA-9142-B-CAA-5 affirming, under penalty of perjury. That the employer is suffering or will probably experience irreparable harm. If it can’t employ the requested H-2B workers, then it is trying to an employee returning workers only. Unless the H-2B workers is a foreign national counted towards the 6,500 caps for the 4 designated nations. Employers should take note that this is another version 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 & security 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, or equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.