On May 21, 2021, the U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) announced a joint temporary final rule that will make 22,000 additional H-2B visas available during fiscal year (FY) 2021.
The H-2B Temporary Non-Agricultural Worker Program allows U.S. employers to temporarily hire noncitizen workers in seasonal, non-agricultural work when there are insufficient U.S. workers willing and able to do the work. The annual statutory limit, or “cap,” is 66,000—half for workers in the first six months of the fiscal year (October 1 – March 31) and half for workers in the second six months (April 1 – September 30). Employers experiencing a one-time occurrence or a recurring season need must obtain a temporary labor certification from the DOL and document their unsuccessful efforts to recruit U.S. workers. Then, these employers must petition for work authorization from DHS, specifically USCIS, on behalf of prospective H-2B workers. For several years, USCIS has reach the H-2B cap by February each year.
Because of the COVID-19 pandemic, international travel restrictions, and other conditions in the U.S., some H-2B employers are likely to face irreparable harm and severe financial loss if they are unable to employ all of the prospective workers for whom they requested authorization from USCIS. The Secretaries of DHS and DOL have considered the needs of these business, as well as the impact on U.S. workers and the integrity of the H-2B program, and determined that it would be appropriate to temporarily increase the H-2B cap for the remainder of FY2021.
The additional 22,000 H-2B visas are allocated as follows: 16,000 are available for returning workers who received an H-2B visa or were otherwise granted H-2B status during FY2018, FY2019, or FY2020. The remaining 6,000 visas are set aside for nationals of Honduras, Guatemala, and El Salvador (collectively, the Northern Triangle), who need not be returning workers. Beginning May 25, 2021, USCIS will accept cap-subject H-2B petitions with start dates on or before September 30, 2021, and will consider them in the order received—unless, within the first five calendar days, USCIS receives petitions exceeding the temporary increases, in which case a lottery will be conducted to select eligible H-2B workers. Otherwise, the filing window will remain open until the cap is reached. The deadline for petitions seeking the 6,000 Northern Triangle visas is July 8, 2021 (unless the visas are exhausted by an earlier date). After July 8, 2021, remaining visas will be available to any returning worker, regardless of nationality.
H-2B employers must comply with other participation restrictions as described in the temporary final rule. For more information, USCIS has a dedicated web page with instructions and a link to the rule.
© 2021 Tafapolsky & Smith LLP. All rights reserved.
The content above is provided for informational purposes only. It should not be construed as legal advice on any subject matter. Use of this information does not create an attorney-client relationship.