DHS to Accept Petitions for Additional FY 2018 H-2B Visas Starting May 31, 2018

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At a glance

• Petitions will be accepted until the additional quota numbers are exhausted or until September 14, 2018, whichever is sooner.
• Petitioners must attest that they will suffer irreparable harm if they are unable to hire additional H-2B workers.

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A closer look

The Department of Homeland Security will begin accepting petitions for an additional 15,000 FY 2018 H-2B visas on May 31, 2018, according to an advance copy of filing instructions that will be published.  DHS and DOL announced Friday that they would jointly authorize a one-time increase of 15,000 H-2B visas in FY 2018 above the 66,000 annual cap. The additional visa numbers will be available to employers who attest that they would suffer irreparable harm without additional temporary non-agricultural workers and meet other requirements.

Qualifying employers may submit petitions beginning May 31 until the additional quota numbers are exhausted or until September 14, 2018, whichever is earlier. Petitions not approved before October 1, 2018 will be denied and fees will not be refunded.

The FY 2018 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:

• USCIS Form I-129, Petition for a Nonimmigrant Worker
• A valid temporary labor certification approved by DOL. If the labor certification contains an employment start date before April 15, 2018, the employer must conduct additional recruitment.
• DOL Form ETA-9142-B-CAA-2, on which the employer must attest that: 
  • It will likely suffer irreparable harm in the form of permanent and severe financial loss without the requested temporary non-agricultural workers; and
  • It will conduct additional recruitment and comply with associated document retention and hiring requirements if the labor certification start date is before April 15, 2018.

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 2018 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 H-2B visas above the 66,000 annual cap will not be available in future years unless cap relief 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.