H-2B Temporary Rule granted 30,000 visas to Returning Workers

On May 6, 2019, DHS announced that a joint DHS/DOL temporary rule increasing the H-2B cap for the remainder of FY2018 by an additional 30,000 visas would be published in the Federal Register and effective on May 8, 2019, based on authority granted in the Consolidated Appropriations Act, 2019 (FY2019 Omnibus). The additional visas will be available only to “returning workers”, who are defined as those individuals who have held H-2B status in at least one of the past three fiscal years (FY2016, FY2017, and FY2018). The 30,000 H-2B visas are in addition to the 66,000 visas already issued during this fiscal year. As in previous years, this increase is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years.

On May 8, 2019, petitioners who may be eligible for H-2B visas under the supplemental cap can file Form I-129, Petition for a Nonimmigrant Worker, including an I-129H Supplement, with an unexpired Temporary Labor Certification (TLC) to USCIS. Petitioners will also be required to complete Form ETA-9142-B-CAA-3, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 105 of Division H of the Consolidated Appropriations Act certifying that their business is likely to suffer irreparable harm if unable to employ the requested H-2B workers and that each of the workers requested and/or instructed to apply for a visa under the supplemental H-2B cap have been issued an H-2B visa or otherwise granted H-2B status during one of the last three fiscal years (FY 2016, 2017, or 2018). Form ETA-9142-B-CAA-3 and its instructions will be available on the U.S. Department of Labor website. Please note that according to the temporary rule, completion of the Form ETA-9142-B-CAA-3 is seen as sufficient for the purposes of attesting that each worker meets the returning worker requirement. No further supporting documentation or paperwork is required at the time of filing.

If the supplemental cap has not already been reached, USCIS will stop accepting petitions for H-2B supplemental visas received after September 16, 2019. Any petitions that remain pending on October 1, 2019, will be denied and fees will not be refunded. Petitioners may request premium processing of their petition. DHS has indicated that H-2B petitions submitted pursuant to the FY2019 Omnibus will be processed in the order in which they are received.

An H-2B Temporary Rule increasing the H-2B cap for the remainder of FY2019 has been made available to the public and was published in the Federal Register on Wednesday, May 8, 2019, as well as on the USCIS website.

According to the H-2B Temporary Rule to qualify for the additional H-2B visas, employers must establish that the employer will experience irreparable harm if it cannot hire the required H-2B workers and that it will only request “returning workers”. In addition, the employer must meet the following requirements:

1. The employer must have a valid temporary labor certification, and the date on the employer’s visa petition must not be later than last day of authorized employment on the temporary labor certification
2. Individuals in the U.S. cannot seek a change of status from another nonimmigrant status pursuant to the additional 30,000 H-2B numbers. However, the petition can be approved for consular processing as the rule permits the issuance of H-2B visas.
3. The employer must complete an additional appendix, ETA 9142-B-CAA-3, Attestation for Employers Seeking to Employ H-2B Nonimmigrants Workers Under Section 205 of Division M of the FY2018 Omnibus and Section 105 of Division H of the FY2019 Omnibus. In signing the ETA 9142-B-CAA-3, the employer attests that it will likely suffer irreparable harm, defined as permanent and severe financial loss. DHS interprets the “needs of the American businesses” as different from the “temporary need” requirement usually required of employers who petition for H-2B workers. Supporting documentation need not be submitted to USCIS but must be retained for three years and presented in the event of an audit. Documentation may include evidence that the business is not able to or would not be able to meet financial or contractual obligations, that the business is unable to pay debts or bills, or that the business will suffer or has suffered a financial loss. Evidence may include but is not limited to:
   1. Financial statements (including profit/loss statements) comparing present period of need as compared to prior years;
   2. Bank statements (past and present);
   3. Tax records to show current or past situations;
   4. Employment records;
   5. Evidence showing number of workers needed in the past and the present; or
   6. Evidence showing number of H-2B workers in past seasons, requested, employed, offered hours, and worked hours.
4. In completing Form ETA-9142-BCAA-3, the petitioner will also certify that each of the workers requested and/or instructed to apply for a visa under the supplemental H-2B cap have been issued an H-2B visa or otherwise granted H-2B status during one of the last three fiscal years (FY 2016, 2017, or 2018. Employers should retain evidence that may demonstrate compliance with the returning worker provision for three years, including, but not limited to, date-stamped written communication from the employer to its agent(s) and/or recruiter(s) instructing that only workers who were previously issued an H-2B visa in FY 2016, 2017, or 2018 be recruited to apply for an H-2B supplemental visa.
5. Employers who submit a Form I-129 petition 45 or more days after the certified start date on the TLC, must also conduct a fresh round of recruitment for U.S. workers:
   1. Place a new job order with the State Workforce Agency (SWA) serving the area of intended employment that contains the job assurances and contents set forth in 20 CFR §655.18 for recruitment of U.S. workers, and post at the place of employment for at least 5 days beginning not later than the next business day after submitting the I-129 Petition and the accompanying attestation to USCIS;
   2. Place one print or online newspaper advertisement, which may be published on any day of the week, meeting the advertising requirements of 20 CFR §655.41, during the period of time the SWA is actively circulating the job order for intrastate clearance; and
   3. Offer the job to any qualified and available U.S. worker who applies or is referred for the job opportunity until two business days after the last date on which the job order is posted.
6. All advertising must be retained for three years from date of the ETA 9142B certification.
7. H-2B employers must retain documents and records demonstrating compliance with the advertising requirements to provide to DHS or DOL upon audit or request pursuant to new 20 CFR §655.67.