Additional H-2B Visas Made Available for Employment in Fiscal Year 2017

The Departments of Homeland Security and Labor (DHS and DOL) will jointly authorize a one-time increase of 15,000 H-2B visas in FY 2017. The additional visa numbers will be available to employers who can demonstrate that they would suffer irreparable harm without additional temporary non-agricultural workers and meet other requirements, according to a Federal Register notice set to be published on July 19, 2017.

Qualifying employers may petition for additional H-2B workers beginning July 19 until the additional quota numbers are exhausted or until September 15, 2017, whichever is earlier. Petitions not approved before October 1, 2017 will be denied and fees will not be refunded.

The one-time increase was authorized under a provision in the federal spending bill passed earlier this year.

Petitioning for Additional H-2B Employment

Employers seeking authorization for additional H-2B workers must submit the following to USCIS:

• A valid temporary labor certification approved by DOL. If the labor certification contains an employment start date before June 1, 2017, the employer must conduct additional recruitment.
• USCIS Form I-129, Petition for a Nonimmigrant Worker.
• New DOL Form ETA-9142-B-CAA, on which the employer must attest to the following:
  • The employer will likely suffer irreparable harm in the form of permanent and severe financial loss without the requested temporary non-agricultural workers; and
  • The employer will conduct additional recruitment and comply with associated document retention and hiring requirements if the labor certification start date is before June 1, 2017.

Employers may request premium processing services for the H-2B petition.

Retaining Documentation of Irreparable Harm

Employers are not required to submit evidence of irreparable harm with their H-2B petitions, but must retain supporting documentation on file for three years from the labor certification approval date, demonstrating that the employer would be unable to meet financial obligations and suffer permanent and severe financial loss without additional H-2B workers. Such documentation must be made available 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 does not support the irreparable harm attestation, the employer may be debarred from the H-2B program for one to five years and may be barred from filing any labor certification application for the same period.

What This Means for Employers

Employers with FY 2017 H-2B employment needs should work with their immigration counsel to submit petitions as soon as possible before the additional cap numbers are exhausted. Additional visas will not be available in future years unless the cap relief provision is reauthorized by Congress.

If you have any questions about filing an H-2B petition, please contact the immigration professional with whom you work at Fragomen. This alert is for informational purposes only.