United States: DHS Will Make Additional H-2B Visas Available for Employment in the First Half of FY 2022
December 20, 2021
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At a glance
- Employers will soon be able to petition for an additional 20,000 H-2B quota numbers for temporary non-agricultural employment that begins on or before March 31, 2022.
- Of the 20,000 visas, 13,500 will be available to returning H-2B workers and 6,500 will be reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they are H-2B returning workers.
- Employers will likely be required to attest that their business is at risk of irreparable harm without additional H-2B workers.
- DHS is expected to issue petition filing instructions for the additional quota numbers in the coming weeks.
A closer look
An additional 20,000 H-2B visa numbers will be authorized for temporary non-agricultural employment in FY 2022, the Department of Homeland Security (DHS) announced today. This H-2B cap supplement is the first time DHS is making additional H-2B visas available in the first half of the fiscal year; the visas will be available for H-2B employment that begins or or before March 31, 2022. Of the FY 2022 supplemental visas, 13,500 will be available to returning workers who had already been granted H-2B status during one of the last three fiscal years. The remaining 6,500 visas will be reserved for nationals of Haiti, El Salvador, Guatemala, and Honduras, regardless of whether they ever held H-2B status. The FY 2021 H-2B supplemental quota of 22,000 visas was reached on August 13, 2021, so these FY 2022 supplemental numbers provide an additional opportunity for certain H-2B employers.
As with prior supplemental increases, employers are likely to be required to attest that their business is at risk of irreparable harm without the additional workers. Employers are also likely to 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 2022 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 expected soon
In the coming weeks, DHS is expected to publish a temporary final rule setting forth filing procedures for the additional H-2B numbers. Petitioners are expected to be required to submit USCIS Form I-129, a valid temporary labor certification approved by DOL and an attestation on a separate DOL form.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
