United States: U.S. ALERT- DHS Increases FY 2017 Limit On H-2B Temporary Nonagricultural Workers

The Departments of Homeland Security and Labor issued a "temporary rule" on July 19, 2017, to increase the limit of 66,000 H-2B nonimmigrant visas by authorizing the issuance of up to an additional 15,000 visas through the end of fiscal year 2017. The Departments said this is a one-time increase "based on a time-limited statutory authority" and does not affect the H-2B program in future fiscal years. They plan to promulgate regulations to implement this determination. The rule is effective July 19, 2017, through September 30, 2017.

The Departments explained that because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply for labor certification 75 to 90 days before the start date of work, employers who wish to obtain visas for their workers under the semi-annual allotment must act early to receive a temporary labor certification (TLC) and file a petition with USCIS. As a result, the Departments noted, the Department of Labor typically sees a significant spike in TLC applications for H-2B visas for temporary or seasonal jobs during the U.S.'s warm weather months. For example, in FY 2017, of the TLC applications filed in January, the Office of Foreign Labor Certification (OFLC) certified 54,827 worker positions for start dates of work on April 1, in excess of the entire semi-annual visa allocation. U.S. Citizenship and Immigration Services received sufficient H-2B petitions to meet the second half of the fiscal year regular cap on March 13, 2017. This was the earliest date that the cap was reached in a respective fiscal year since FY 2009 and reflects an ongoing trend of high program demand, the Departments explained.

Following consultation with the Secretary of Labor, the Secretary of Homeland Security determined that the needs of some U.S. businesses could not be satisfied in FY 2017 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor. The Secretary of Homeland Security determined that it was appropriate to raise the numerical limitation on H-2B nonimmigrant visas by up to an additional 15,000 for the remainder of the fiscal year, which ends September 30. Consistent with such authority, the Secretary of Homeland Security decided to increase the H-2B cap for FY 2017 by up to 15,000 additional visas for those U.S. businesses that attest to a level of need such that, if they do not receive all of the workers under the cap increase, they are likely to suffer irreparable harm; i.e., a permanent and severe financial loss. These businesses must attest that they will likely suffer irreparable harm and must retain documentation supporting this attestation, the Departments note.

The Secretary of Homeland Security's determination to increase the numerical limitation was based on the conclusion that "some businesses face closing their doors in the absence of a cap increase." The Departments noted that some stakeholders reported that access to additional H-2B visas is essential to the continued viability of some small businesses that play an important role in sustaining the economy in their states, while others stated that an increase is unnecessary and raises the possibility of abuse. The Secretary of Homeland Security has deemed it "appropriate, notwithstanding such risk of abuse, to take immediate action to avoid irreparable harm to businesses; such harm would in turn result in wage and job losses by their U.S. workers, and other adverse downstream economic effects."

The rule, which was published at 82 Fed. Reg. 32987 (July 19, 2017), is at https://www.gpo.gov/fdsys/pkg/FR-2017-07-19/html/2017-15208.htm. Details on eligibility and filing requirements are also available at https://www.uscis.gov/working-united-states/temporary-workers/one-time-increase-h-2b-nonimmigrant-visas-fy-2017. The page includes an email address for reporting fraud and abuse at ReportH2Babuse@uscis.dhs.gov.

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