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

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

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 July 8, 2021, USCIS planned to make an announcement on its website by July 23, 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 cap was reached on June 3, 2021. USCIS now reports that while it received a substantial number of H-2B petitions on behalf of Northern Triangle nationals, it did not receive enough to meet the 6,000 visa number carve-out.

As with prior supplemental increases, employers will be required to attest that their business is at risk of irreparable harm without the additional workers. Employers will also be able to hire 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 does not affect the H-2B program in future fiscal years.

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

To qualify for the additional 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 entire employment period stated on the petition);
• If Form I-129 is filed 45 or more days after the certified start date on the TLC, evidence that the employer has conducted a fresh round of recruitment for U.S. workers;
• An attestation on DOL Form ETA- 9142-B-CAA-4 affirming, under penalty of perjury, that the employer will likely suffer irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employee returning workers only. Employers should note that this is a new edition of the attestation form, and that previous years’ editions will not be accepted; and
• Agree to comply with all applicable labor 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, 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.

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, have their H-2B petitions denied or revoked, or become subject to criminal penalties.

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 countries. Additional visas will not be available in future years unless a similar supplement is authorized.