United States: Beginning May 18, 35,000 Additional H-2B Visas Become Available for Second Half of FY 2022

The semiannual cap of 33,000 visas for the second half of FY 2022 was reached on February 25, 2022. The FY 2022 omnibus spending law, which was enacted in March 2022, permits DHS to authorize additional H-2B nonimmigrant numbers beyond the fiscal year statutory quota. This number is in addition to the 20,000 supplemental H-2B visas made available in January of 2022 for the first half of FY 2022, for petitions with start dates on or before March 31, 2022. The new increase applies to FY 2022 only and does not affect the H-2B program in future fiscal years.

To qualify for the additional H-2B visas, employers must submit the following to USCIS on or before September 15, 2022:

• USCIS Form I-129 , Petition for a Nonimmigrant Worker, requesting an employment start date on or after April 1 through September 30, 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);
• An attestation on DOL Form ETA-9142-B-CAA-6 affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending 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 11,500 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, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

In addition, if Form I-129 is filed 30 or more days after the certified start date on the TLC, the employer must attest to engaging in certain specified additional steps to recruit U.S. workers.

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, along with documentation supporting all of the H-2B attestation requirements, 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 attestations, 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 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.