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DOL H2B Applications Exceed Visa Availability 2018

DOL announced a change in the H2B processing because on January 1, 2018 the number of H2B applications exceeded the number of H2B visas available.

https://www.foreignlaborcert.doleta.gov/news.cfm

On January 1, 2018, the earliest date on which an employer seeking an employment start date of April 1 through September 30, 2018, OFLC received approximately 4,500 applications covering more than 81,600 worker positions. Except where a statutory exemption applies, the Department of Homeland Security (DHS) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of FY 2018 (April 1 to September 30).

· January 17, 2018. H-2B Processing Announcement

The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) is making this announcement to alert employers and other interested stakeholders about a process change to better assure fairness regarding the issuance of H-2B temporary labor certifications due to the unprecedented volume of applications received on January 1, 2018.

H-2B Visas: Statutory Background and OFLC Process

The Immigration and Nationality Act (INA) sets the annual number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status by the Department of Homeland Security (DHS) to perform temporary non-agricultural work at 66,000. Up to 33,000 H-2B visas may be issued in the first half of a fiscal year (October 1 to March 31), and the remaining semi-annual allocation of 33,000 visas will be available for employers seeking to hire H-2B workers during the second half of the fiscal year (April 1 to September 30). This announcement concerns the processing of the H-2B temporary labor certification applications for the April 1 - September 30, 2018 period of need.

OFLC process for obtaining an H-2B certification is a two-step process for employers. Employers must first file a complete and accurate Application for Temporary Employment Certification (ETA Form 9142B). Following review and acceptance from OFLC, the employer must then conduct recruitment of U.S. workers and file a recruitment report. The Department reviews those reports and issues final labor certification decisions to employers who comply with all regulatory requirements as they are returned to OFLC by employers. Employers granted temporary labor certification are then eligible to file a petition with the United States Citizenship and Immigration Services (USCIS) at the DHS.

Process Change for Granting Temporary Labor Certification

Because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply with OFLC for a temporary 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 for periods of need beginning from April 1 - September 30, 2018, must promptly apply for a temporary labor certification and then file a petition with USCIS before the cap is reached. As a result, OFLC typically experiences a significant "spike" in labor certification applications at the beginning of January for temporary or seasonal jobs during the U.S.'s early spring and summer weather months.

Thus, on January 1, 2017 (FY 2017), OFLC received 1,538 applications covering approximately 26,673 worker positions for a work start date of April 1, 2017; approximately 80% of the entire semi-annual visa allocation of 33,000. By contrast, on January 1, 2018, OFLC received approximately 4,498 applications covering 81,008 worker positions requesting an April 1, 2018, start date of work. This unprecedented level of employer requests for H-2B workers on January 1, 2018 is approximately three times greater than the number of applications received on January 1, 2017, and more than two and one-half times greater than the 33,000 semi-annual visa allotment for FY 2018 permitted under the INA. In previous years, OFLC processed applications as expeditiously as possible in a manner irrespective of the time of day the application was filed, only focusing on processing applications by the day they were filed. Although OFLC is working as expeditiously as possible to issue first actions, review responses to Notices of Deficiency, and issue Notices of Acceptance, the overwhelming workload this year has strained OFLC's processing system and resulted in delays for the majority of all applications filed on January 1. OFLC expects the first 2,400 applications filed on January 1 (which represent approximately 40,000 worker positions) will be processed for first actions by next week, with the remainder of all filed applications processed for first actions in the weeks that follow.

Employers receiving Notices of Acceptance can proceed to meet the additional regulatory requirements, including recruitment of U.S. workers and submission of recruitment reports. Employers receiving Notices of Deficiency that are corrected, and who then receive a Notice of Acceptance, can also proceed to meet the additional regulatory requirements. In order to promote fairness for employers in accessing the H-2B program and due to the unprecedented volume of applications on January 1, OFLC is making a change to its process regarding the issuance of final labor certification decisions. This process change will better reflect the sequential order in which employers filed applications. Thus, OFLC will not begin releasing certified H-2B applications (Form ETA-9142B Application for Temporary Employment Certification) until February 20, 2018. On that day, OFLC will release certified H-2B applications that have met all regulatory requirements as of that day in sequential order based on the original calendar day and time the application was filed (i.e., receipt time). Thereafter, OFLC will continue to release certified H-2B applications in a sequential manner until all applications are released. OFLC will continue to issue rejections, withdrawals, and denials of labor certification applications in accordance with standard procedures. This process change will allow employers who filed promptly on January 1, 2018, sufficient time to meet regulatory requirements, including the recruitment and hiring of qualified and available U.S. workers, thus preserving the sequential order of filing that took place on January 1, 2018, to the extent possible.

As required, OFLC will grant temporary labor certification only after the employer's H-2B application has met all the requirements for approving labor certification under 20 CFR 655.50 and the subpart. In accordance with regulatory requirements, OFLC will send all certified H-2B applications to the employer, or the employer's authorized attorney or agent, by means normally assuring next day delivery.

· January 3, 2018. OFLC Issues Public Service Announcement Regarding H-2B Requests for Temporary Labor Certification, Second Half of Fiscal Year (FY) 2018

The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) is making this public service announcement to alert employers and other interested stakeholders about the high volume of applications received requesting temporary labor certification under the H-2B visa program.

On January 1, 2018, the earliest date on which an employer seeking an employment start date of April 1 may file an H-2B application requesting temporary labor certification, OFLC received approximately 4,500 applications covering more than 81,600 worker positions. Except where a statutory exemption applies, the Department of Homeland Security (DHS) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of FY 2018 (April 1 to September 30).

The OFLC takes each request for temporary labor certification seriously and administers the labor certification program in a manner that protects the wages and working conditions of both H-2B and U.S. workers who support the seasonal workforce needs of U.S. small businesses, consumers, and communities. We are working as expeditiously as possible to issue first case actions, review responses to Notices of Deficiency (NODs), and issue Notices of Acceptance where possible. First case actions are taken on a first filed basis and responses to NODs are evaluated in the order in which they are received.

Background on Statutory Limit of H-2B Visas

The Immigration and Nationality Act (INA) set at 66,000 the annual number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status by the DHS to perform temporary non-agricultural work. Up to 33,000 H-2B visas may be issued in the first half of a fiscal year (October 1 to March 31), and the remaining annual allocation will be available for employers seeking to hire H-2B workers during the second half of the fiscal year (April 1 to September 30). If insufficient petitions are approved to use all H-2B numbers in a given fiscal year, the unused numbers cannot be carried over for petition approvals in the next fiscal year.

On December 21, 2017, the DHS United States Citizenship and Immigration Services (USCIS) announced that the first half of the annual number of H-2B visas for Fiscal Year (FY) 2018 was reached and, except where a statutory exemption applies, USCIS will reject new H-2B petitions requesting an employment start date on or before March 31, 2018. In accordance with the INA, USCIS will accept new H-2B petitions for the remaining 33,000 visas available for FY 2018 where the employer has received a temporary labor certification from the DOL and requests an employment start date on or after April 1, 2018.

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