May 19, 2022 Article

35,000 Additional H-2B Visas Now Available for the Second Half of Fiscal Year

On May 18, 2022, the Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a temporary rule authorizing the issuance of additional 35,000 H-2B visas for the second half of Fiscal Year 2022 for positions with start dates after April 1, 2022 through September 30, 2022. The additional visas are divided into two allocations, as follows:

  • 23,500 visas limited to returning workers, regardless country of nationality, that is, those workers who were issued H2B visas or held H2B visas in fiscal years 2019, 2020 and 2021, and
  • 11,500 visas reserved for nationals of El Salvador, Guatemala, Honduras and Haiti.

To qualify for the FY 2022 supplemental cap, eligible petitioners must:

  1. Meet all existing H2B eligibility requirements (including having a temporary labor certification (TLC) from the DOL;
  2. Properly file an I-129 Petition on or before September 15, 2022, requesting start date on or after April 1, 2022 through September 30, 2022.
  3. Submit an attestation affirming, under penalty of perjury, that the employer is suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H–2B workers requested on the petition, and that they are seeking to employ returning workers only, unless the H–2B worker is a Salvadoran, Guatemalan, Honduran, or Haitian national and counted towards the 11,500 cap exempt from the returning worker requirement; and
  4. Agree to comply with all applicable labor and 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, or to reimbursement for travel to and from the nearest available vaccination site, 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.

Additional Recruitment

Employers filing an H–2B petition 30 or more days after the certified start date on the TLC, must attest to engaging in the following additional steps to recruit U.S. workers:

  1. No later than 1 business day after filing the petition, place a new job order with the relevant State Workforce Agency (SWA) for at least 15 calendar days.
  2. Contact the nearest American Job Center serving the geographic area where work will commence and request staff assistance in recruiting qualified U.S. workers. You must contact, by email or other electronic means, the nearest AJC serving the area of intended employment where work will commence to request staff assistance to advertise and recruit U.S. workers for the job opportunity. DOL offers an online service for employers to locate the nearest local AJC at https://www.careeronestop.org/ and by selecting the “Find Local Help” feature on the main homepage. This feature will navigate you to a search function called “Find an American Job Center” where the city, state or zip code covering the geographic area where work will commence can be entered.
  3. Contact the employer’s former U.S. workers, including those the employer furloughed or laid off beginning on January 1, 2020, and until the date the H–2B petition is filed, disclose the terms of the job order and solicit their return to the job.
  4. Post notice of the job opportunity at the anticipated worksite for 15 days.
  5. Hire any qualified U.S. worker who applies or is referred for the job opportunity until the later of either (1) the date on which the last H–2B worker departs for the place of employment, or (2) 30 days after the last date of the SWA job order posting.

Filing Deadlines

Petitions will be processed in the order in which they were received. Even if the supplemental allocations provided in this rule have not yet been reached, USCIS will stop accepting petitions received after September 15, 2022.

Irreparable Harm

Prior to the first half FY 2022 temporary final rule, petitioners were only required to attest that they were likely to suffer irreparable harm if they were unable to employ all of the H–2B workers requested on their I–129 petition submitted under H–2B cap increase rules. In the previous FY 2022 temporary final rule, the Departments changed the standard to require employers to instead attest that they are suffering irreparable harm or will suffer impending irreparable harm without the ability to employ all of the H–2B workers requested on the petition filed under the rule.

The petitioner must retain documents and records fulfilling their responsibility to demonstrate compliance with this rule for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL.

With regard to the irreparable harm standard, employers attesting that they are suffering irreparable harm must be able to provide concrete evidence establishing severe and permanent financial loss that is occurring; the scope and severity of the harm must be clearly articulable. Employers attesting that they will suffer impending irreparable harm must be able to demonstrate that severe and permanent financial loss will occur in the near future without access to the supplemental visas; it will not be enough to provide evidence suggesting that such harm may or is likely to occur; rather, the documentary evidence must show that impending harm will occur and document the form of such harm.

Supporting evidence of the attestation may include, but is not limited to, the following types of documentation:

  1. Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss due to the inability to meet financial or existing contractual obligations because they were unable to employ H–2B workers, including evidence of contracts, reservations, orders, or other business arrangements that have been or would be cancelled, and evidence demonstrating an inability to pay debts/ bills;
  2. Evidence that the business is suffering or will suffer in the near future permanent and severe financial loss, as compared to prior years, such as financial statements (including profit/ loss statements) comparing the employer’s period of need to prior years; bank statements, tax returns, or other documents showing evidence of current and past financial condition; and relevant tax records, employment records, or other similar documents showing hours worked and payroll comparisons from prior years to the current year;
  3. Evidence showing the number of workers needed in the previous three seasons (FY 2019, 2020, and 2021) to meet the employer’s need as compared to those currently employed or expected to be employed at the beginning of the start date of need. Such evidence must indicate the dates of their employment, and their hours worked (for example, payroll records) and evidence showing the number of H–2B workers it claims are needed, and the workers’ actual dates of employment and hours worked; and/or
  4. Evidence that the petitioner is reliant on obtaining a certain number of workers to operate, based on the nature and size of the business, such as documentation showing the number of workers it has needed to maintain its operations in the past, or will in the near future need, including but not limited to: A detailed business plan, copies of purchase orders or other requests for good and services, or other reliable forecast of an impending need for workers.
  5. With respect to satisfying the returning worker requirement, evidence that the employer requested and/or instructed that each of the workers petitioned by the employer in connection with this temporary rule were issued H–2B visas or otherwise granted H–2B status in FY 2019, 2020, or 2021, unless the H–2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap. Such evidence would include, but is not limited to, a date-stamped written communication from the employer to its agent(s) and/or recruiter(s) that instructs the agent(s) and/or recruiter(s) to only recruit and provide instruction regarding an application for an H–2B visa to those foreign workers who were previously issued an H–2B visa or granted H–2B status in FY 2019, 2020, or 2021.

These examples are not exhaustive, nor will they necessarily establish that the business meets the irreparable harm or returning worker standards; petitioners may retain other types of evidence they believe will satisfy these standards.

COVID-19 Requirements

First, the Departments are requiring such petitioners to attest on the DOL Form ETA–9142–B–CAA–6 that they will comply with all Federal, State, and local employment-related laws and regulations, including, where applicable, health and safety laws and laws related to COVID–19 worker protections; any right to time off or paid time off for COVID–19 vaccination, or to reimbursement for travel to and from the nearest available vaccination site

Second, employers must attest that they will notify any H–2B workers approved under the supplemental cap, in a language understood by the worker as necessary or reasonable, that all persons in the United States, including nonimmigrants, have equal access to COVID–19 vaccines and vaccine distribution sites. WHD has published a poster for employers’ optional use for this notification.

Document Retention and Audits

Petitioners filing H–2B petitions under this FY 2022 supplemental cap must retain documentation of compliance with the attestation requirements for 3 years from the date the TLC was approved, and must provide the documents and records upon the request of DHS or DOL.

As in prior years, the DOL will conduct audits to monitor compliance. Typically, the noncompliance areas are: (1) failure to pay the promised wage; (2) failure to demonstrate irreparable harm; (3) failure to employ returning workers; and (4) failure to work at the listed location. 

When a petition is selected for audit examination, or investigation, DHS or DOL will review all evidence available to it to confirm that the petitioner properly attested to DHS, at the time of filing the petition, that their business was suffering irreparable harm or would suffer impending irreparable harm, and that they petitioned for and employed only returning workers, unless the H–2B worker is a national of one of the Northern Central American countries or Haiti counted towards the 11,500 cap, among other attestations.

If DHS subsequently finds that the evidence does not support the employer’s attestations, DHS may deny or, if the petition has already been approved, revoke the petition at any time consistent with existing regulatory authorities. DHS may also, or alternatively, refer to DOL for further investigation. In addition, DOL may independently take enforcement action, including by, among other things, debarring the petitioner from the H–2B program for not less than 1 year or more than 5 years from the date of the final agency decision, which also disqualifies the debarred party from filing any labor certification applications or labor condition applications with DOL for the same period set forth in the final debarment decision.

Portability

DHS is again providing additional flexibilities to H– 2B petitioners by allowing nonimmigrant workers in the United States in valid H–2B status and who are beneficiaries of non-frivolous H–2B petitions received on or after July 28, 2022, or who are the beneficiaries of non-frivolous H–2B petitions that are pending as of July 28, 2022, to begin work with a new employer after an H– 2B petition (supported by a valid TLC) is filed and before the petition is approved, generally for a period of up to 60 days. However, such employment authorization would end 15 days after USCIS denies the H–2B petition or such petition is withdrawn. This H–2B portability ends 180 days after the provision’s effective date of July 28, 2022, in other words, after January 24, 2023.

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