Close

DHS Authorizes Additional 15,000 H-2B VIsas for FY2018

Considerations for filing an H-2B petition per the new regulation.

 

Following several weeks of tense discussions between Congress and the Trump administration, the Department of Homeland Security published a final rule May 31 in the Federal Register authorizing issuance of 15,000 additional H-2B visas for the remainder of fiscal year 2018.

As reported this spring, Congress authorized the DHS to raise its cap on H-2B temporary worker visas from the current cap of 66,000 to 129,500 visas for FY2018 within the context of the omnibus appropriations law passed in late March. DHS states that by issuing 15,000 extra H-2B visas—significantly below the additional 63,500 authorized by the FY2018 omnibus—the agency will prioritize employers who demonstrate that they would suffer “irreparable harm” to their business unless they are able to hire additional seasonal workers during the summer and fall 2018 seasons. DHS further states that it seeks to avoid possible abuse of the H-2B program by limiting the pool of extra visas to 15,000.

According to the rule, DHS punted the broader temporary worker shortage issue to Congress, urging lawmakers to reform the Immigration and Nationality Act, which establishes the H-2B visa program. During the course of the extended back-and-forth discussions between the legislative and executive branches this spring, DHS claims that only congressional action can provide long-term certainty with respect to the issuance of more guest worker visas. According to federal regulators, addressing worker shortages through the annual appropriations process fails to create certainty, undercutting the ability of the business community to plan long-term.

Since moving forward with a limited cap increase, DHS’s United States Citizenship and Immigration Service has outlined some practical considerations for filing an H-2B petition per the new regulation:

  • An employer “must meet all existing H-2B eligibility requirements,” which includes receipt of “an approved Temporary Labor Certification from the Department of Labor that is valid for the entire employment period stated on the petition.” DHS reminds employers that “the employment start date on the petition must match the employment start date on the TLC, even if that date has passed.”
  • Employers must also “conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018.”
  • A business must “submit an attestation on Form ETA 9142-B-CAA-2 in which the petitioner affirms, under penalty of perjury, its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year.” The agency provides Form ETA 9142-B-CAA-2 Instructions to properly complete the attestation.
  • DHS further states that it “will not accept” an “expired ETA 9142-B-CAA from fiscal year 2017.”  The agency will reject any “petition that does not include the new ETA 9142-B-CAA-2 attestation form for fiscal year 2018.”

Recognizing the time constraints associated with the application process, DHS states that it will “adjudicate” applications within 15 calendar days for employers opting for “premium processing,” and 30 days for standard applications. To learn more about how to fast-track an H-2B visa application, please go to: https://www.uscis.gov/forms/how-do-i-use-premium-processing-service.

The unprecedented demand for guest worker visas this year will create a narrow time frame in which to submit an application.

As details unfold related to practical considerations associated with the new rule, American Horse Council will continue to inform members about developments and helpful notes for members who are considering moving forward with summer applications.

As a reminder, AHC will be conducting a panel discussion featuring congressional and industry experts June 12 in Washington as part of the association’s annual meeting. To view a copy of the final rule, go to: https://www.gpo.gov/fdsys/pkg/FR-2018-05-31/pdf/2018-11732.pdf.

Homeland Security Announces 15,000 Additional H-2B Visas For 2018

Saturday, Secretary of Homeland Security Kirstjen M. Nielsen announced that an additional 15,000 H-2B temporary nonagricultural worker visas will be available for Fiscal Year 2018. In this determination, Secretary Nielsen determined there are not sufficient, qualified, U.S. workers available to perform temporary non-agriculture labor to satisfy the needs of American businesses in FY18. This allocation is in addition to the 66,000 visas already issued this year. Secretary Nielsen made this decision after consulting with Secretary of Labor Alexander Acosta, members of Congress, and business owners.

“The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed,” said Secretary Nielsen. “I call on Congress to pass much needed reforms of the program and to expressly set the number of H-2B visas in statute.  We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program.  As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

The H-2B temporary nonagricultural worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B visa cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas from the first half of that fiscal year, is available starting April 1 through September 30.

On February 27, 2018, USCIS determined that it had received sufficient H-2B petitions to meet the full FY 2018 statutory cap of 66,000.

In the FY 2018 Omnibus, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural worker visas available to U.S. employers through September 30, just as it did in the FY 2017 Omnibus. In the intervening time since enactment of the FY 2018 Omnibus, the Secretary consulted with the Secretary of Labor on the issue, in accordance with Congressional requirements, and developed this rule.

Starting this week, eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker.  Eligible petitioners must submit a supplemental attestation on Form ETA 9142-B-CAA-2 with their petition.

Details on eligibility and filing requirements will be available in the final temporary rule and on the Increase in H-2B Nonimmigrant Visas for FY 2018 webpage to be published on uscis.gov when the final temporary rule is posted for public inspection.

DHS is committed to ensuring that our immigration system is implemented lawfully and that American workers are protected. If members of the public have information that a participating employer may be abusing this program, DHS invites them to submit information to ReportH2BAbuse@uscis.dhs.gov and include information identifying the H-2B petitioning employer and relevant information that leads them to believe that the H-2B petitioning employer is abusing the H-2B program.

Back to top