The Department of Homeland Security (DHS) in conjunction with the Department of Labor (DOL) will be starting the fiscal year by making an additional 64,716 H-2B temporary nonagricultural worker visas available. This is on top of the 66,000 normally available.

This move represents a change in strategy. Instead of waiting, the agencies announced the additional allocation at the start of the federal fiscal year to allow employers to plan for peak season needs. In exchange, the agencies are instituting more robust protections for U.S. workers and implementing a new White House-convened Worker Protection Taskforce to ensure that H-2B workers are protected from exploitation and abuse. DHS and DOL are expected to issue a new rule explaining how the visas will be distributed.

Of the 64,716 visas, 20,000 will be reserved for workers from Haiti and the Central American Northern Triangle countries of El Salvador, Guatemala, and Honduras. The remaining 44,716 visas will be available to returning workers who have received an H-2B visa or were otherwise granted H-2B status during one of the last three fiscal years. The additional visas will be split between the first and second halves of the year – reserving visas to fill the peak summer season needs.

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. They are employed by various industries, including hospitality, tourism, landscaping, and seafood processing. The need for workers always exceeds the number of visas available, but hit a critical mass in the last few years due to labor shortage issues and economic growth. While grateful for the additional allocation, some employers like the crab processors in Maryland have noted that this is just a temporary fix and that, even with the additional visas, there may likely be an “overwhelming demand.”

Jackson Lewis attorneys are available to assist you to undertake the three-step H-2B process and will provide updates on the new allocation as they become available.

As they did for last summer, the Department of Homeland Security (DHS) and the Department of Labor (DOL) will make available an additional 35,000 H-2B temporary nonagricultural worker visas for the second half of FY 2022. This more than doubles the usual 33,000 allocation or cap for the summer.

Of the new 35,000 visas, 23,500 will be allocated to returning workers (those who received H-2B status within the past three years) and 11,500 will be allocated to nationals from El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they are returning workers. Last year, the special allocation included only the Northern Triangle countries. This year, Haiti has been added.

Secretary of DHS Alejandro J. Mayorkas said the new release is due to demand in the labor market and is meant to “support American businesses and expand legal pathways for workers seeking to come to the United States.” This should please some businesses, such as hotels, restaurants, and other service providers in summer tourist areas. However, last year, despite the additional allocation, all the extra visas were snatched up quickly (except for a few left over from the Northern Triangle allocation).

H-2B visas allow employers to bring foreign national workers to the United States for temporary, seasonal, nonagricultural jobs. There is a three-step process involved. First, the employer must prove to DOL that there are not enough U.S. workers available to do the job and that bringing in foreign nationals for these positions will not adversely affect the wages and working conditions of U.S. workers. Then, a petition must be filed with USCIS. Finally, if all of that is approved, the worker must apply for an H-2B visa abroad.

Some workers are exempt from the cap:

  • Workers in the United States in H-2B status who extend their stay, change employers, or change the terms and conditions of their employment;
  • Fish roe processors, fish roe technicians, and their supervisors;
  • Workers who will be doing jobs in the Commonwealth of Northern Mariana Islands or Guam.

For more information on bolstering workforces with H-2B workers, listen to Jessica Feinstein’s and Brenda Oliver’s podcast on the subject.

 

To help employers dealing with labor shortages due to the limits on H-2B temporary, seasonal visas, a new rule published by the Department of Labor (DOL) increases the H-2B numerical limits. DOL also released a rule that allows H-2B nonimmigrant workers already in the United States to begin work immediately with a new employer after an H-2B petition has been filed if it is supported by a valid Temporary Labor Certification (TLC) received by USCIS even if it is not yet approved.

The new rules do not apply to employees who are continuing to work with the same employer. Those employees are not “portable,” instead they are entitled to keep working for up to an additional 240 days if the extension of stay was timely filed.

Portability for workers changing employers applies if:

  • The H-2B extension was received before May 25 and is pending on May 25, 2021; or
  • USCIS receives the H-2B petition between May 25 and November 22, 2021.

First, the new employee may be employed for up to 60 days beginning on the employment start date of the petition or May 25, 2021, whichever is later.

Second, the 60-day period begins on the Received Date of the Form I-797, Notice of Action, acknowledging receipt of the petition or the employment start date, if later than the receipt date.

Completing a Form I-9, Employment Eligibility Verification, for H-2B portability requires:

  • An unexpired Form I-94, Arrival/Departure Record indicating H-2B status and the employee’s foreign passport constitute a List A Document
  • In Section 2, List A enter:
    • Unexpired foreign passport information
    • Unexpired Form I-94 information
    • Enter “60-Day Ext.” and the date extension of stay petition was submitted to USCIS in the Additional Information field
  • Employment authorization must be reverified in Section 3 by the end of the 60-day period or when a decision is received from the USCIS, whichever is sooner.

If USCIS denies the petition or the new petition is withdrawn by the employer before the 60-day period expires, USCIS will automatically terminate the worker’s employment authorization 15 calendar days after the denial or the withdrawal.

Although the new allotment of H-2Bs have been snatched up, there are still some H-2B visas available for employees from the Northern Triangle countries. If those are not all allotted by July 8, 2021, the remaining visas will be released by the end of July.

If you have questions about the I-9 process for H-2B workers, please reach out to your Jackson Lewis attorneys. We will continue to provide updates as they become available.

For more information on H-2B petitions, see the new H-2B Employer Data Hub.

By June 1, 2021, Department of Homeland Security (DHS) had received more H-2B visas petitions than the allotted 16,000 slots for returning workers. A lottery will be conducted to determine which petitions will be accepted for processing.

DHS announced in April that it will release 22,000 more H-2B visas for the summer season. Of those, 16,000 are available to returning workers and 6,000 are allotted to nationals from the Northern Triangle countries (El Salvador, Guatemala, and Honduras). Petitions were accepted by USCIS starting on May 25, 2021.

The 6,000 allotment for Northern Triangle countries has not yet been met and USCIS is still accepting these petitions through July 8. If all 6,000 spots are not filled, DHS will announce by July 23, 2021, that the remaining spots will be released and available to returning workers of any nationality. DHS encourages employers whose petitions were not selected under the returning worker quota to refile for workers from the Northern Triangle.

There are certain workers who are exempt from the cap and DHS will continue to accept petitions from them:

  • Current H-2B workers in the United States petitioning to extend their stay;
  • Workers associated with fish roe processing; and
  • Certain workers performing labor or services in the Commonwealth of Northern Mariana Islands or Guam.

For help with H-2B visas, please reach out to your Jackson Lewis attorney.

The Department of Homeland Security (DHS) has announced that it plans to release 22,000 more H-2B visas in addition to the 66,000 H-2B visas available annually, reserving 6,000 for the Northern Triangle countries of Guatemala, El Salvador, and Honduras.

U.S. employers may bring foreign nationals to this country to fill temporary, non-agricultural jobs in H-2B status. H-2B visas are relied on heavily by the tourist, hospitality, landscaping, seafood, and construction industries. In recent years, all the visas have been used up and businesses have gone begging for more – often just to be able to remain afloat.

Annually, 66,000 H-2B visas are available, half for the winter season and half for the summer season. These 33,000 visas are wholly insufficient for the number of jobs open for H-2B workers. For the summer of 2021, the Department of Labor received applications for a total of 98,000 workers, all vying for one of the coveted 33,000 spots. Due to the overwhelming demand, the 33,000 H-2B visas were used by February 12, 2021. The prospect of thousands of jobs unfilled for their busiest season panicked many industries.

For years, employers have advocated for additional H-2B visas. In response, Congress authorized DHS to release more visas. In 2020, DHS planned to release an additional 35,000 visas, with 10,000 specifically reserved for nationals of Guatemala, El Salvador, and Honduras, but that was put on hold due to high unemployment rates resulting from the COVID-19 pandemic.

It could be a few months before USCIS issues the final rule and obligations for employers to obtain one of the 22,000 new H-2B visas. If it is like last year, U.S. employers likely will need to perform additional recruitment before applying for the visas.

Jackson Lewis attorneys are available to assist you through the process of applying for the newly released H-2B visas and bringing new workers to the United States.

The Department of Homeland Security announced that on May 14, 2020, a new temporary rule will go into effect giving employers in the food processing industry more flexibility to hire H-2B workers who are essential to maintaining the food supply chain.

Work essential to the food supply chain includes, but is not limited to, work related to:

  • Processing, manufacturing, and packaging of human and animal food;
  • Transporting human and animal food from farms, or manufacturing or processing plants, to distributors and end sellers; and
  • Selling of human and animal food through a variety of sellers or retail establishments, including restaurants.

Recognizing the need to keep the food supply operating, DHS is doing for some H-2B employers what it previously did for agricultural employers who rely on H-2A workers.

Until at least September 11, 2020:

  • Workers in the U.S. in valid H-2B status may start working for new employers while the new employers’ petitions are pending with USCIS;
  • The temporary employment authorization will last for up to 60 days or until the start date of the petition, whichever is later;
  • The employer must attest that the work performed will be temporary and essential to the U.S. food supply chain; and
  • The Department of Labor must have acknowledged receipt of a labor certification from the employer for the position.

The new rule will also allow H-2B workers who are essential to the U.S. food supply chain to work and stay in the U.S. beyond the usual three-year time limit. Without this dispensation, H-2B workers would have to leave the U.S. for at least three months before returning.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily in the tourist, hospitality, landscaping, and construction industries. Early in 2020, demand for H-2B visas was very high. The 33,000 visas available for the spring/summer period ran out as soon as they became available. Congress authorized DHS to make more H-2B visas available, but in April, DHS announced that extra H-2B visas had been put on hold because of skyrocketing unemployment claims in the U.S. due to the COVID-19 pandemic. Given the Administration’s growing concern about the U.S. food supply chain, flexibility has become necessary.

Please contact your Jackson Lewis attorney if you have questions about how the new rule will apply.

 

Extra H-2B visas have been put “on hold” and would not be released “until further notice,” the Department of Homeland Security (DHS) has announced.

Shortfalls of H-2B visas have been a perennial problem. Used for temporary, seasonal, non-agricultural workers, these visas are relied on heavily by the tourist, hospitality, landscaping, and constructions industries. The statutory limit on the number of H-2B visas available each year is 66,000: 33,000 for the spring/summer period (which starts on April 1 of each year) and another 33,000 for the winter season. Once the visas run out, based on Congressional authorization, DHS can decide to make more visas available if it determines there are not enough willing, qualified, and available U.S. workers.

This year the 33,000 H-2B spring/summer cap was reached in mid-February. On March 5, 2020, DHS announced it would release an additional 35,000 visas, with 10,000 specifically reserved for nationals from Guatemala, El Salvador, and Honduras for their cooperation in stemming the flow of undocumented workers. Along with the extra visas came some reform measures, including:

  • Increasing Department of Labor employer site visits; and
  • Limiting the additional visas to returning workers with good records of immigration law compliance.

At that time, the unemployment rate and the consequent claims for unemployment compensation were very low – about 4%. Now, in the face of COVID-19, those claims are skyrocketing. In light of about 10 million initial unemployment claims, DHS reported that to support U.S. workers, the promised additional H-2B visas were on hold and would not be released “until further notice.” Petitions for individuals exempt from the yearly caps will still be processed. Current H-2B visa holders who are seeking extensions fall within these exemptions. Whether there is still a need for these H-2B workers remains to be seen.

If you have questions about the status of any H-2B petitions or applications, Jackson Lewis attorneys are available to assist you.

 

The peak H-2B filing season opened on January 2, 2020, and by the next day the Office of Foreign Labor Certification (OFLC) in the Department of Labor (DOL) had received approximately 5,000 applications for 87,000 seasonal workers. Only 33,000 are available for the spring/summer period, which starts on April 1, 2020. Another 33,000 are available for the winter season.

Once the 33,000 visas run out for the spring/summer period, DHS can decide to make more H-2B visas available if the agency finds that there are not enough willing, qualified, and available U.S. workers. The current demand seems to speak for itself. By January 4, 2020, the number seasonal workers whose employers were seeking visas grew to 99,362 – three times the number available. Last year, DOL announced that the applications would be accepted on a first come, first served basis. That led to the DOL website crashing within minutes of the “opening bell.” This year, to try to eliminate that problem, DOL transitioned to a new platform and announced it would conduct a randomized lottery of all applications submitted within the three-day filing window of January 2 to January 4. That lottery took place on January 6, 2020, and on January 8, 2020, DOL published on its website the lottery results and the five assignment groups (A-E).

The H-2B process consists of two adjudicatory steps: a labor certification filing with DOL followed by a petition filing with USCIS. DOL will adjudicate applications it has received on a continuous basis – starting with Group A. Once all the Group A applications have been issued a Notice of Acceptance of a Notice of Deficiency, they will move to the next Group as quickly as possible. Those with Notices of Acceptance can move to the next step – filing the H-2B petition with USCIS.

H-2B visas are for temporary, seasonal, non-agricultural workers and are used primarily by the tourist, hospitality, landscaping and construction industries. Certain workers are exempt from the cap: those who are already in H-2B status and are extending their stay, those who were previously counted against the cap in the same fiscal year, and individuals involved in fish roe processing. Despite those exemptions, demand has for years exceeded the number of visas available — especially for the spring season. Recognizing the problems that many businesses were having, for four years in a row, Congress has authorized the Department of Homeland Security to raise the cap. In the first two years, DHS allowed for an additional 15,000. Last year, it authorized an additional 30,000. We do not yet know how many additional visas will be authorized this year.

When and if additional visas become available, employers who wish to apply for them must attest that without the additional workers they will suffer permanent irreparable harm and maintain documentation to that effect, i.e., documents showing that without the additional workers they will not be able to meet contractual obligations or that they will suffer severe financial hardship.

If you have questions about how to successfully navigate through the H-2B process, Jackson Lewis attorneys are available to assist you.

Just as the H-2B visas for the first half of the fiscal year 2020 ran out (with some limited exceptions), the Department of Homeland Security (DHS), in cooperation with the Department of Labor (DOL), has released a new final rule on H-2B visas that changes and modernizes the recruitment process.

The rule, which becomes effective on December 16, 2019, provides that employers will no longer need to run an expensive print ad in a newspaper of general circulation for these temporary, seasonal, non-agricultural worker visas. Instead, DOL will post the job ad on its Seasonaljobs.dol.gov website.

DOL believes that this will improve efficiency. This also will help DOL expand and enhance its electronic job registry to publicize available job opportunities to the widest audience possible. Certifying Officers (COs) will retain the discretion to evaluate case by case whether additional recruitment might be necessary to ensure an adequate labor market test.

When the new rule was first published for comment in November 2018, DHS and DOL suggested that it would be up to the employer to place an electronic ad and ensure that it met all regulatory requirements (including that it be clearly visible on the website homepage, that it be easily retrievable and publicly accessible at no cost, that the website be functionally compatible with the latest browsers, and that it be easily reviewable on mobile devices). By the end of the comment period, DHS and DOL decided to handle the posting themselves since making the employer responsible for meeting the technical requirements appeared unwieldy, especially for employers who may not be tech savvy.

Commentators, particularly newspapers, defended the viability of print ads and expressed concern about the financial impact on newspapers and the fact that not everyone – especially in rural areas – has good or even adequate internet access. Nevertheless, DHS and DOL concluded based on data from PEW and others that the internet is becoming the most popular way to search for jobs and that the number of individuals without access to the internet is declining. In addition, DOL noted that, by its handling of the electronic posting, unscrupulous employers will have no place to “hide” advertisements.

DOL recognizes that the Seasonaljobs.dol.gov site is currently a bit “clunky,” so it is transitioning to a new platform that, among other things, will be mobile friendly.

When the H-2B recruitment postings begin, the site will include:

  • A concise job description with a link to the full description;
  • The geographic location of the position;
  • Accessibility to language translation services;
  • Accessibility to Web scraping; and
  • An enhanced RSS feed.

This move may be a first step toward eliminating the print newspaper ad requirement for PERM recruitments – likely an even bigger blow to newspaper classified ad revenue.

Please contact a Jackson Lewis attorney with any questions.

At the end of March 2019, the Trump Administration announced that it would release another 30,000 H-2B visas for seasonal employees for use through the end of September 2019. The annual allocation had been capped at 66,000 for the full year. In 2017 and 2018, the Administration increased the allocation by 15,000 visas. However, on January 1, 2019, the Department of Labor’s iCert system crashed when over 96,000 H-2B visas were requested. The unprecedented number of requests may have led to the unprecedented increase in the allocation.

The White House Office of Information and Regulatory Affairs (OIRA) has concluded its review of the increase. The OIRA is moving forward with the additional 30,000 visas. The new rule was released in the Federal Register on May 8, 2019.

The additional visas will only be available to businesses who can attest to “irreparable harm,” i.e., a risk of closure absent the visas. Moreover, the additional visas will only be available to “returning workers,” classified as those who have received H-2Bs at least once in the past three years (2016, 2017, 2018). The Department of Homeland Security (DHS) believes that these requirements will ensure national security and protect the U.S. workforce. Returning workers have already been vetted. They have shown that they will return home at the end of their temporary stay. DHS’s ability to require proof of irreparable harm will further prevent abuse.

This move provides some welcome relief to businesses in summer tourist areas where the ability to hire foreign workers can be key to keeping their businesses open. Last year, there were many hardship cases. Governor Larry Hogan of Maryland said “[a] second year of hardship could permanently damage Maryland’s seafood industry, causing these iconic family businesses to close and having a devastating impact on jobs in our state.”

Employers will be able to use previously certified labor certifications as long as the new start date is no more than 45 days after the certified start date. Jackson Lewis attorneys are available to assist you in making H-2B filings and can answer any questions you may have about the newly released visas.