Temporary Increase in H-2B Nonimmigrant Visas for FY 2021

ALERT: USCIS has announced that employers may file H-2B petitions for returning workers under the FY 2021 H-2B supplemental visa temporary final rule if they are likely to suffer irreparable harm without these additional workers. We previously announced that we had received enough petitions for the 16,000 visas initially made available for returning workers under the rule. However, USCIS received fewer petitions than needed to reach the 6,000 visas allocated for workers from the Northern Triangle countries by the July 8 deadline. According to the temporary final rule, all remaining visas will now be made available to eligible H-2B returning workers, regardless of their country of origin. Read more here: Employers May File H-2B Petitions for Returning Workers for FY 2021.

On May 25, 2021, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 22,000 additional visas through the end of fiscal year (FY) 2021. These supplemental visas are available only to U.S. businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition.

Of the 22,000 additional visas, 16,000 are initially available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 6,000 visas are set aside for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Triangle), who are exempt from the returning worker requirement. See “Who Can Petition for the Additional Visas” below. To qualify for the Northern Triangle allotment, petitions must be received by July 8, 2021.

This increase is based on a time-limited statutory authority that expires after Sept. 30, 2021. It does not affect the H-2B program in future fiscal years.

The Secretary of Homeland Security decided to increase the cap in accordance with section 105 of division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus). In the FY 2021 Omnibus, Congress again delegated its authority to the Secretary to set a numerical cap for the remainder of the fiscal year. Before authorizing the additional visa numbers, the Secretary of DHS, in consultation with the Secretary of Labor, considered the needs of businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program.

Who Can Petition for the Additional H-2B Visas

Only U.S. businesses that are likely to experience irreparable harm (permanent and severe financial loss) if they cannot employ all the H-2B workers that they request on their Form I-129 petition for this fiscal year may file under this temporary increase. In addition, employers may only request workers who have been issued an H-2B visa or otherwise granted H-2B status in FY 2018, 2019, or 2020, unless they are petitioning for workers under the 6,000 Northern Triangle allotment.

The temporary final rule provisions pertaining to the 22,000 supplemental visas do not apply to petitions that are not subject to the H-2B cap, including those petitions filed for an H-2B extension of stay request or on behalf of certain fish roe processors. Those petitions may continue to be filed under the normal rules of the H-2B program.

How to File an H-2B Petition for the Additional H-2B Visas

On May 25, 2021, USCIS began accepting additional cap-subject H-2B petitions with employment start dates on or before Sept. 30, 2021, and considering them in the order they are received.

To file an H-2B petition under this time-limited increase to the H-2B cap, petitioners must:

  • Meet all existing H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from DOL that is valid for the entire employment period stated on the petition). As a reminder, the employment start date on the petition must match the employment start date on the TLC, even if that date has passed;
  • If applicable, conduct a fresh round of recruitment for U.S. workers, as described in the temporary final rule, (if Form I-129 is filed 45 or more days after the certified start date of work on the TLC);
  • Submit an attestation on the DOL Form ETA 9142-B-CAA-4 (PDF) in which the petitioner affirms, under penalty of perjury, that its business will likely suffer irreparable harm if it cannot employ the requested H-2B workers before the end of the fiscal year, and that it is seeking to employ returning workers only, unless the worker is eligible under the Northern Triangle allotment. Please follow the DOL Form ETA 9142-B-CAA-4 Instructions (PDF) when completing the attestation; and
  • 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, 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.

NOTE: USCIS will not accept the expired ETA 9142-B-CAA from FY 2017, ETA 9142-B-CAA-2 from FY 2018, or ETA 9142-B-CAA-3 from FY 2019. We will reject any petition that does not include the new ETA 9142-B-CAA-4 (PDF) attestation form for FY 2021 (or a copy of this new form) but is seeking H-2B workers under the FY 2021 supplemental allocation.

Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is likely to suffer irreparable harm if they are unable to employ all the H-2B workers requested in their petition. In addition, petitioners must retain evidence that the employer requested and/or instructed that each of the H-2B workers petitioned under this rule were issued H-2B visas or otherwise granted H-2B status in FY 2018, 2019, or 2020 for a period of three years unless the petition requests H-2B workers under the Northern Triangle allotment, who are not subject to a returning worker requirement. Petitioners must provide the documentation if DHS or DOL request it, as well as fully cooperate with any compliance reviews such as audits. Both DHS and DOL intend to conduct a significant number of post-adjudication audits to ascertain compliance with the attestation requirements of this temporary final rule.

Important Filing Information

H-2B petitioners may continue to request premium processing together with their H-2B petition at additional cost. However, please note that USCIS will not begin processing the petitions filed, including issuing receipt notices or starting the 15-day premium processing clock, until we determine whether we need to conduct a lottery for those petitions received in the first five business days of filing and any such selection process has been completed.

Generally, the employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC. See 8 CFR 214.2(h)(6)(iv)(D). However, for purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed if the TLC is otherwise valid. Petitions with employment start dates that do NOT match the TLC’s employment start date will be rejected and returned with fees. USCIS may deny or reject a petition submitted without the required attestation.

H-2B petitions filed for the supplemental visa allocation may generally request unnamed workers, but such workers will be subject to the returning worker requirement or the limitation to nationals of Northern Triangle countries.

A petitioner requesting both returning workers and Northern Triangle nationals who are exempt from the returning worker requirement must do so on separate petitions. If requesting Northern Triangle nationals who are not subject to the returning worker requirement, the petitioner must mark the corresponding checkbox on the Form ETA-9142-B-CAA-4 (PDF).

Petitioners should provide a duplicate copy of their petition and all supporting documentation when they file. Failure to submit duplicate copies may delay the Department of State from issuing a visa to otherwise eligible applicants.

If a petitioner files a petition seeking H-2B workers under this supplemental visa allocation and requests a change of status for a worker in the U.S., USCIS will deny the change of status request but will adjudicate the petition to determine eligibility for H-2B classification.

If USCIS approves the H-2B petition, the worker would need to obtain the H-2B visa, if applicable, at a consular post abroad before seeking admission to the U.S. in H-2B status at a port of entry. Check the Department of State processing times web page to ensure that workers have sufficient time to apply for a visa.

Filing Deadlines

The filing deadline for petitions requesting Northern Triangle nationals who are exempt from the returning worker requirement is July 8, 2021. If fewer than 6,000 beneficiaries are requested toward the visas set aside for nationals of the Northern Triangle countries, USCIS will announce by July 23, 2021, that the remaining visa numbers will be made available to beneficiaries regardless of nationality, subject to the returning worker limitation.

USCIS will otherwise stop accepting petitions under this increase received after Sept. 15, 2021, or when the cap is reached, whichever occurs first. We will reject any petitions received after Sept. 15 or after the cap is reached, whichever is earlier. USCIS will deny all petitions not approved before Oct. 1, 2021, and will not refund any fees.

We will consider petitions requesting an employment start date on or after Oct. 1, 2021, towards the FY 2022 H-2B cap, subject to all eligibility requirements for FY 2022 H-2B cap filings.

Portability

In addition to making additional visas available under the FY 2021 time-limited authority, DHS is exercising its general H-2B regulatory authority to temporarily provide portability flexibility by allowing H-2B workers who are already in the United States to begin work with a new employer after USCIS receives the H-2B petition (supported by a valid temporary labor certification) filed on their behalf, and before approval of the petition. With disruptions and uncertainty over visa processing and international travel caused by the COVID-19 pandemic, this additional flexibility allows U.S. employers to meet their labor needs, while allowing H-2B workers to change employers more quickly. This temporary flexibility is available if an H-2B petition is pending or received on or after May 25, 2021, but no later than 180 days after that date.

Petitions filed to extend the stay of H-2B workers who are already in the U.S. as H-2B workers are not subject to the cap. Thus, petitioners requesting to have these current H-2B workers immediately work for them after they file their petition with USCIS and before the petition is approved, under the portability provision of the temporary final rule, are not subject to the irreparable harm requirement. These petitioners, who are only seeking portability flexibilities for cap-exempt workers, are also not required to conduct a fresh round of recruitment or to submit Form ETA-9142-B-CAA-4.

Reporting Fraud

To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.

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