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Employers May Seek Remaining FY 2021 Returning Worker H-2B Visas, Cap Likely to be Reached Quickly

4 min read
H-1B visas renewed

The Department of Homeland Security (DHS) has declared that employers may again file H-2B petitions for returning workers from any country of origin, according to its supplemental H-2B regulation.

The regulation made 22,000 extra H-2B visas available for FY 2021. With 16,000 available to returning H-2B workers from any nation, and 6,000 put away for Northern Triangle nationals. However, per the guideline, because some Northern Triangle H-2B slots stay open. They have become available to returning H-2B workers from any country.

Employers may file these H-2B petitions for returning workers who have held H-2B status in fiscal years 2018, 2019, or 2020. USCIS will accept the filings until 15th September 2021, or until the cap is eventually reached, whichever is prior. USCIS says that only a few H-2B slots stay open, so the cap is probably going to be quickly reached.

In May 2021, the Department of Homeland Security made 22,000 extra H-2B visas available for FY 2021. Of these, 16,000 were to be available to returning workers who recently held H-2B status in fiscal years 2018, 2019, or 2020. While the excess 6,000 were saved for nationals of the Northern Triangle nations of El Salvador, Guatemala, and Honduras, regardless of whether they previously held H-2B status.

Employers May File H-2B Petitions for Returning Workers for FY 2021

The 6,000 Northern Triangle carve-out was in keeping with President Biden’s Executive Order 14010. “Creating a Comprehensive Regional Framework to Address the Causes of Migration. To Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” If all 6,000 were not allocated by 8th July 2021. USCIS planned to make a declaration on its site by 23rd July 2021. And the remainder of the carve-out would become available to nationals of any country, subject to the returning worker limitation.

The standard FY 2021 H-2B cap was reached on February 12, 2021, and the 16,000 supplemental caps were reached on 3rd June 2021. USCIS presently reports that while it got a substantial number of H-2B petitions. On behalf of Northern Triangle nationals, it didn’t get enough to meet the 6,000 visa number carve-out.

As with earlier supplemental increases, employers will be needed to attest that their business. Also, risk of irreparable harm without the additional workers. Also, employers can recruit workers who are already present in the United States in H-2B status without waiting for approval of the new petition. The supplemental increase applies to FY 2021 only and doesn’t influence the H-2B program in future fiscal years.

Employers looking for H-2B workers should test the U.S. labor market and certify in their petitions. That there are insufficient U.S. workers who are able, willing, qualified, and available for the offered positions; and that employing H-2B workers won’t adversely influence the wages and working conditions of similarly employed U.S. workers. The supplemental increase will mean businesses looking for new H-2B workers will need to engage in additional recruitment efforts.

Filing instructions

To qualify for the extra H-2B visas, employers must submit the following to USCIS:

  • USCIS Form I-129, Petition for a Nonimmigrant Worker;
  • Evidence that the employer meets all H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from DOL that is valid for the whole employment period expressed 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 fresh round of recruitment for U.S. workers;
  • A verification on DOL Form ETA-9142-B-CAA-4 affirming, under penalty of perjury. That the employer will probably experience irreparable harm if it cannot employ the requested H-2B workers, and that it is trying to an employee returning workers only. Employers should take note that this is a new edition of the attestation form and that previous years’ editions will not be accepted; and

[Current Priority Order for US Immigrant Visa Processing]

  • Agree 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, or equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

What this means for employers

Employers with FY 2021 H-2B employment needs should work with their immigration counsel. To submit petitions as soon as possible before the remaining cap numbers are exhausted. This includes employers who wish to employ returning H-2B workers from the Northern Triangle nations. Extra visas won’t be available in future years unless a similar supplement is authorized.

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