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.

The H-2B visa shortage continues, impacting thousands of U.S. businesses around the country. H-2B visas are used widely in hospitality and tourism, landscaping and the construction industry to hire foreign workers for temporary nonagricultural work.  There are 66,000 available annually – half for the winter season and half for the summer season.

The first step to obtain an H-2B visa is to file a labor certification with the Department of Labor.   In the first day of the year, the DOL received requests for labor certifications that would have represented 88,000 workers – well beyond the statutory quota and the resources of the DOL.  As a result, the DOL held any approved labor certifications until February 20, 2018. This created a wave of H-2B applications to USCIS on February 22 and February 23.  On February 28, 2018, without any prior announcement, the USCIS conducted a random lottery to select the petitions that would be adjudicated. The next day, the USCIS announced it had received enough petitions to fill the 33,000 spots for the upcoming summer season.  This has left tens of thousands of jobs unfilled and U.S. companies scrambling to find a solution.

Representative William R. Keating (D-MA) who represents Cape Cod and has long advocated for increasing the number of H-2B visas available seemed frustrated by this last minute decision. “You can’t schedule inventory, hire local personnel, or market a business based on a last-minute lottery. . . .Thousands of businesses across the country will not be able to fully operate without H-2B worker assistance.”

In 2017, in response to requests and lobbying efforts from businesses that need seasonal workers, Congress gave then-Secretary of the Department of Homeland Security John Kelly authority to release more visas. Kelly held off but at the last moment released an additional 15,000 visas.  This year, as Congress negotiates in another effort to avoid a government shutdown, attempts are being made to amend the omnibus spending bill to increase the number of H-2B visas.

Senators Tim Kaine (D-Va.) and Thom Tillis (R-N.C.) are advocating to increase the H-2B visa numbers from 66,000 to 90,000 while Representative Andy Harris (R.-Md.) would like to raise the cap to 120,000. Moves of this sort seem to be supported by House Speaker Paul Ryan (R-Wisc.) and, if included in the omnibus spending bill, could increase the numbers available for this year and possibly beyond.  Senator Chuck Grassley (R-Iowa) is interested in adding an exemption from the cap for workers who are involved in disaster relief work in states that have suffered from major disasters this past year.

The March 23 budget deadline is practically upon us and a shutdown may be imminent. There are a number of issues beyond the H-2B visa program that are holding things up including two other immigration issues:  border wall funding and DACA.

Jackson Lewis will continue to provide updates regarding Congressional action.

An additional 15,000 H-2B visas will be released in response to industry demand. The USCIS will begin accepting petitions on July 19, 2017, for the fiscal year which ends on September 30, 2017. Petitions will be accepted until the 15,000 visas run out or until September 15, 2017, whichever comes first. This is only a one-time increase.

Although Secretary Kelly had been hesitant to release additional visas, Congress granted him the authority to increase the total number available in an effort to eliminate the hardship to U.S. businesses that have relied on these workers in the past, but were unable to fill temporary, seasonal positions because the visas ran out on March 13, 2017.

The additional 15,000 H-2B visas come with new requirements. In order to file the petition, the employer must:

  • Possess a certified Temporary Labor Certification (TLC) with a start date before October 1, 2017
  • Ensure the start date on the petition matches the start date on the TLC (if the TLC has a start date prior to June 1, 2017, a new recruitment must be conducted)
  • Submit an attestation stating the employer will suffer irreparable harm, defined as “permanent and severe financial harm” if it cannot hire all of the requested H-2B workers

Once the petition has been filed:

  • A job order must be posted with the State Workforce Agency for five days within one business day of the filing
  • One newspaper ad must be posted while the job order is running
  • Applicants must be interviewed and a recruitment report must be prepared and maintained

While evidence of irreparable harm is not required, submitting some documentation could be helpful. In any case, employers must maintain documentation of the harm for three years and present it if requested.

Once the petition is approved, the employee may need to obtain an H-2B visa before entering the U.S. Given the requirements, processing times, and the fact that new recruitments may have to be conducted, it can take up to eight weeks to put new H-2B workers on the payroll.

Although employers hoped for more, the 15,000 visas should provide some relief to those who are able to file quickly and satisfy the requirements of the new rule.

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

DHS announced on July 17, 2017, a one-time increase of 15,000 H-2B visas – still short of the number Congress had authorized. Given visa processing times, it may already be too late for businesses that rely on the summer season.

The summer is half over and well-known vacation areas are in turmoil because companies have not been able to find enough seasonal workers to handle the influx of tourists. Restaurants and bakeries on Cape Cod, amusement parks in the Midwest, hotels on lake islands, and fisheries in Alaska have been looking for temporary workers to fill jobs usually taken by trusted, experienced workers who return to work for them seasonally, sometimes year after year, on H-2B visas.

The statutory limit on the number of H-2B visas available each year is 66,000. However, until last year, an exemption from the limit for “returning workers” allowed more. In 2016, Congress failed to renew that exemption. In March 2017, H-2B visas for seasonal workers ran out. This means that employers relying on such seasonal workers, particularly those that constitute the summer tourist industry, have been left in the lurch. Congressmen from states that need seasonal workers failed to gain enough support for legislation to reinstate the exemption. In May, however, a provision was added to the omnibus spending bill that authorized Secretary of DHS John Kelly to increase the number of visas available from 66,000 to as high as 129,000. Employers have been anxiously waiting for more visas, but, until July 17, none have been forthcoming, and time was running out for companies that need revenue from the summer season to stay in business.

In June, Congressman William Keating (whose district includes Cape Cod) reported Secretary Kelly stated that his sense of the omnibus resolution was that Congress did not want to expand the number. Keating responded that there was “huge bipartisan support for [the increase]” and that it would not come at the cost of any U.S. worker jobs.

Employers are continuing to struggle to find U.S. workers. Lacking sufficient staff, businesses have had to cut their hours of operation, creating a ripple effect among U.S. workers in the tourist industry who are losing hours as well. Some businesses are turning to overtime. For many, that is not a sustainable model.

At the end of June, DHS announced that Kelly would use the authority granted by Congress to increase the visa number limit. On July 11, Senator Thom Tillis (R-N.C.), who represents a state that uses more H-2B visas than any (besides Texas and Colorado), put a “hold” on President Donald Trump’s nominee for USCIS director, Lee Francis Cissna, until Kelly releases more H-2B visas.

If you are in need of H-2B workers, contact your Jackson Lewis attorneys for further information.