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Additional 35,000 H-2B visas to be issued

John Lambo - May 27 2022
Published in: Public Policy
Ruling permits employers to temporarily hire noncitizens to perform nonagricultural labor or services in the United States. 

On May 16, 2022, the Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a temporary rule authorizing the issuance of additional 35,000 H-2B visas for the second half of Fiscal Year 2022 for positions with start dates after April 1, 2022 through September 30, 2022. These visas will supplement the previous supply of 33,000 H-2B visas for the second half of the current fiscal year, all of which have been claimed. The employment must be for a limited period of time, such as a one-time occurrence, or seasonal or intermittent need.

The additional visas are divided into two allocations, as follows:

  • 23,500 visas to returning workers, regardless country of nationality, that is, those workers who were issued H2B visas or held H2B visas in fiscal years 2019, 2020, and 2021, and
  • 11,500 visas reserved for El Salvador, Guatemala, Honduras, and Haiti nationals.

To qualify for the FY 2022 supplemental cap, eligible petitioners must:

  1. Meet all existing H2B eligibility requirements (including having a temporary labor certification (TLC) from the DOL;
  2. Properly file an I-129 Petition on or before September 15, 2022, requesting a start date on or after April 1, 2022, through September 30, 2022.
  3. Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID–19, as well as any rights to time off or paid time off to obtain COVID–19 vaccinations or to reimbursement for travel to and from the nearest available vaccination site, 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.
  1. Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable damage without the ability to employ all of the H–2B workers requested on the petition and that they are seeking to employ returning workers only unless the H–2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 11,500 cap exempt from the returning worker requirement

Prior to the first half FY 2022 temporary final rule, petitioners were only required to attest that they were likely to suffer irreparable damage if they were unable to employ all of the H–2B workers requested on their I–129 petition submitted under H–2B cap increase rules. In the previous FY 2022 temporary final rule, the Departments changed the standard to require employers to instead attest that they are suffering irreparable damage or will suffer impending irreparable damage without the ability to employ all of the H–2B workers requested on the petition filed under the rule.

 Employers attesting that they are suffering irreparable damage must be able to provide concrete evidence establishing severe and permanent financial loss that is occurring at present or in the near future; the scope and severity of the harm must be clearly articulable.

The petitioner must retain documents and records fulfilling their responsibility to demonstrate compliance with this rule for three years from the date the TLC was approved and must provide the documents and records upon the request of DHS or DOL.

Supporting evidence of the attestation may include, but is not limited to;

  • Contracts, reservations, orders, or other business arrangements that have been or will be canceled
  • Inability to pay debts/ bills
  • Financial documents showing the business is suffering or will suffer in the near future permanent and severe financial loss, as compared to prior years
  • Number of workers needed in the previous three seasons (FY 2019, 2020, and 2021) vs. those currently employed or expected to be employed to meet the employer’s need

Petitions will be processed in the order in which they were received. Even if the supplemental allocations provided in this rule have not yet been reached, USCIS will stop accepting petitions received after September 15, 2022.

Petitioners must retain documentation of compliance with the attestation requirements for three years from the date the TLC was approved and provide the documents and records upon the request of DHS or DOL.

DOL will conduct audits to monitor compliance.