DHS Now Accepting Petitions for Additional FY 2019 H-2B Visas

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At a glance

• Employers can now petition for an additional 30,000 H-2B quota numbers in FY 2019.
• Petitions will be accepted until the additional quota numbers are exhausted or until September 16, 2019, whichever is sooner.
• To qualify, workers must have previously held H-2B status in at least one of the last three fiscal years, and petitioners must attest that they will suffer irreparable harm if unable to hire additional H-2B workers.

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A closer look

The Department of Homeland Security is now accepting petitions for an additional 30,000 FY 2019 H-2B visas, according to a regulation published today.  DHS and DOL announced Monday that they would jointly authorize a one-time increase of 30,000 H-2B visas in FY 2019 above the 66,000 annual cap. In a shift from previous years, this year’s supplemental visa numbers are reserved for foreign beneficiaries who have held H-2B status in at least one of the past three fiscal years. Employers will still be required to attest that they would suffer irreparable harm without additional temporary non-agricultural workers as well as meet other requirements.

Qualifying employers may submit petitions until the additional quota numbers are exhausted or until September 16, 2019, whichever is earlier. Petitions not approved before October 1, 2019 will be denied and fees will not be refunded.

The FY 2019 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 petition is filed 45 or more days after the certified start date on the labor certification, the employer must conduct additional recruitment.
• DOL Form ETA-9142-B-CAA-3, 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 if the petition is filed 45 or more days after the certified start date of work on the labor certification and will comply with associated document retention and hiring requirements.
  • Employers should note that this is a new edition of the attestation form, and that previous years’ editions will not be accepted.

Employers may request premium processing services for the H-2B petition. However, USCIS will not start the 15-day premium processing clock until after the agency determines whether it is necessary to conduct a lottery from petitions received in the first five business days of filing and any such lottery is completed. Last year, USCIS ran an H-2B lottery because the number of filings exceeded demand for a 15,000 H-2B visa cap increase.

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 2019 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.