DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap

Contributed by Kirby Joseph, Alliance of Business Immigration Lawyers

The Departments of Homeland Security (DHS) and Labor (DOL) published a joint temporary final rule making available an additional 22,000 H-2B temporary nonagricultural guest worker visas for fiscal year (FY) 2021 “to employers who are likely to suffer irreparable harm without these additional workers.” Of the supplemental visas, 6,000 are reserved for workers from Honduras, El Salvador, and Guatemala (Northern Triangle).

The supplemental H-2B visa allocation consists of 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, which are exempt from the returning worker requirement.

USCIS Acting Director Tracy L. Renaud said that the rule “requires that employers take additional steps to recruit U.S. workers, and provides for ‘portability,’ which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved.” She noted that portability enables H-2B workers to “change employers more quickly if they encounter unsafe or abusive working conditions.” She said DHS and DOL “will conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Starting May 25, 2021, eligible employers who have already completed a test of the U.S. labor market to verify that there are no U.S. workers who are willing, qualified, and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker, to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate that their business is likely to suffer irreparable harm without a supplemental workforce.