Beginning Next Week, 22,000 Additional H-2B Visas Become Available for FY 2021
May 21, 2021
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At a Glance
- Beginning next week, employers will be able to petition for an additional 22,000 H-2B quota numbers for temporary non-agricultural employment in FY 2021.
- The supplemental H-2B allocation consists of 16,000 visas available to returning workers who have held H-2B status in fiscal years 2018, 2019 or 2020, and 6,000 visas for nationals of El Salvador, Guatemala and Honduras, which are exempt from the returning worker requirement.
- Petitioners must attest that their business is likely to suffer irreparable harm if they are unable to hire additional H-2B workers.
A closer look
Following the Department of Homeland Security’s (DHS) announcement last month to make 22,000 additional H-2B visas available for FY 2021, the agency today, jointly with the Department of Labor, announced that employers may petition for the new visas starting May 25, 2021. Of these, 16,000 will be available to returning workers who previously held H-2B status in fiscal years 2018, 2019 or 2020, while the remaining 6,000 will be 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 is 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 are not allocated by July 8, 2021, USCIS will make an announcement on its website by July 23, 2021, and the remainder of the carve-out will 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, so these supplemental numbers provide an additional opportunity for certain H-2B employers.
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.
Filing instructions
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, unless the H-2B worker is a foreign national counted towards the Northern Triangle 6,000 cap. 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.
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, have their H-2B petitions denied or revoked, or become subject to criminal penalties.
What this means for employers
Employers with FY 2021 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 a similar supplement is authorized.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
