DHS to Release Additional 35,000 H-2B Visas

​The Department of Homeland Security (DHS) announced an additional 35,000 H-2B visas will be made available for U.S. employers seeking seasonal foreign guest workers this spring and summer.

The additional visas will be set aside for those starting work between April 1 and Sept. 30.

Of the 35,000 visas, 23,500 will be available to returning H-2B workers and 11,500 will be reserved for nationals of El Salvador, Guatemala, Haiti and Honduras, regardless of whether they are H-2B returning workers. Returning workers are those who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years. 

The H-2B guest-worker program, capped annually at 66,000 visas split evenly between the fall/winter and spring/summer seasons, is relied upon by the landscaping, hospitality and construction industries, among others. The H-2B cap for the second half of fiscal year 2022 was reached on Feb. 25.

"This more than doubles the usual 33,000 allocation or cap for the summer," said Jessica Feinstein, an attorney in the Omaha, Neb., office of Jackson Lewis. "This should please some businesses, such as hotels, restaurants and other service providers in summer tourist areas. However, last year, despite the additional allocation, all the extra visas were snatched up quickly, except for a few left over from the Northern Triangle [El Salvador, Guatemala and Honduras] allocation."

Tim Hygh, executive director for the Mackinac Island Tourism Bureau in Michigan, said the businesses of Mackinac Island are grateful for the release of the additional visas to boost the regional economy.

"It's a positive move in the right direction, and we appreciate that this is the earliest that supplemental visas have been released," he said. "We urge the Biden administration to write the final rule as quickly as possible to get the process moving for the businesses and individuals that will be impacted by this decision."

In previous years, employers complained that additional H-2B visas were issued so late in the season that their effect was muted.

Hygh said he still expects disappointed employers and challenges to visa distribution. "There are approximately 100,000 DOL-certified requests fighting over these additional 35,000 supplemental visas, so while this is a much-needed step forward, there are still over 60,000 proven requests that will go unanswered," he said. "On Mackinac Island, it will still take 6 to 8 weeks to get workers covered by these supplemental visas to the island to start their season."

How to File

In the coming weeks, DHS is expected to publish a temporary final rule setting forth filing procedures for the additional H-2B numbers.

"There is a three-step process involved," Feinstein said. "First, the employer must prove to the Department of Labor that there are not enough U.S. workers available to do the job and that bringing in foreign nationals for these positions will not adversely affect the wages and working conditions of U.S. workers. Then, a Form I-129 petition must be filed with U.S. Citizenship and Immigration Services. Finally, if all of that is approved, the worker must apply for an H-2B visa abroad."

As with prior supplemental increases, employers are likely to be required to attest that their business is at risk of irreparable harm without the additional workers.

"Recognizing the importance of strong worker protections, we will apply greater scrutiny to those employers who have a record of violating obligations to their workers and the H-2B program," said DHS Secretary Alejandro Mayorkas.