United States: Beginning January 28, 20,000 Additional H-2B Visas Become Available for First Half of FY 2022
January 27, 2022
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At a glance
- Beginning January 28 and through March 31, 2022, employers will be able to petition for an additional 20,000 H-2B quota numbers for temporary non-agricultural positions with start dates on or before March 31, 2022.
- The supplemental H-2B allocation consists of 13,500 visas available to returning workers who were granted an H-2B visa or have held H-2B status in fiscal years 2019, 2020, or 2021, and 6,500 visas for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they are H-2B returning workers.
- 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 20,000 additional H-2B visas available for the first half of FY 2022, the agency today, jointly with the Department of Labor (DOL), announced that employers may petition for the new visas starting January 28, 2022 and continuing through March 31, 2022. The additional visas are designated only for H-2B positions with start dates on or before March 31, 2022. Of the new supplemental visas, 13,500 will be available to returning workers who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020 or 2021, while the remaining 6,500 will be reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they were previously granted an H-2B visa or status. A temporary rule implementing the supplemental visas will be published in tomorrow’s Federal Register; an advance copy is available.
The supplemental FY 2021 H-2B cap was reached on August 13, 2021, so these new supplemental numbers provide an additional opportunity for certain H-2B employers. The increase applies to FY 2022 only and does not affect the H-2B program in future fiscal years.
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, subject to certain conditions.
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 on or before March 31, 2022:
- USCIS Form I-129 , Petition for a Nonimmigrant Worker, requesting an employment start date on or before March 31, 2022;
- 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-5 affirming, under penalty of perjury, that the employer is suffering or 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 6,500 cap for the four designated countries. Employers should note that this is a new edition of the attestation form, and that previous years’ editions will not be accepted; and
- Attest on the DOL form 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 2022 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.
