Temporary Increase in H-2B Nonimmigrant Visas for FY 2018
On May 31, 2018, the Departments of Homeland Security and Labor published a temporary final rule (PDF) increasing the numerical limit (“cap”) on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2018. These visas are available only to American businesses which, among other things, attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition.
This increase is based on a time-limited statutory authority. It does not affect the H-2B program in future fiscal years. It will expire at the end of the day on Sept. 30, 2018.
Secretary Nielsen’s decision to increase the cap was determined in accordance with section 205 of division M of the Consolidated Appropriations Act, 2018, Public Law 115-141 (“FY 2018 Omnibus”). Congress delegated its authority to Secretary Nielsen to set a numerical cap for the remainder of the fiscal year. Secretary Nielsen considered the needs of American 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 Visas
Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request on their Form I-129 petition for this fiscal year may file under this temporary increase in the H-2B cap.
The joint final rule does not apply to petitions that are not subject to the H-2B cap, including those petitions filed in connection with an H-2B extension of stay request or on behalf of certain fish roe producers. Such petitions may continue to be filed under the normal rules of the H-2B program.
How to File an H-2B Petition
On May 31, 2018, USCIS began accepting additional cap-subject H-2B petitions with employment start dates on or before Sept. 30, 2018, and is 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 the Department of Labor (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;
- Conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before April 15, 2018; and
- Submit an attestation on Form ETA 9142-B-CAA-2 (PDF) 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. Please follow the Form ETA 9142-B-CAA-2 Instructions (PDF) when completing the attestation.
NOTE: USCIS will not accept the expired ETA 9142-B-CAA from fiscal year 2017. A petition that does not include the new ETA 9142-B-CAA-2 attestation form for fiscal year 2018 (or a copy of this new form) will be rejected.
Petitioners must retain evidence and records for 3 years 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. Petitioners must provide the documentation if DHS or DOL requests it.
Important Filing Information
The employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC according to 8 CFR 214.2(h)(6)(iv)(D). For purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed. However, the TLC must still be otherwise valid. Petitions with employment and end 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.
Petitioners are also encouraged to provide a duplicate copy of their petition and all supporting documentation at the time of filing. 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 cap increase and requests a change of status for a worker in the United States, USCIS will deny the change of status request but will adjudicate the petition.
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 United States 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.
USCIS will stop accepting petitions under this increase on Sept. 14, 2018 or after the cap is reached, whichever occurs first. USCIS will reject any petitions received after Sept. 14 or after the cap is reached, whichever is earlier. Petitions not approved before Oct.1, 2018, will be denied and any fees will not be refunded.
USCIS will consider petitions requesting an employment start date on or after Oct. 1, 2018, towards the FY 2019 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2019 H-2B cap filings.
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.