Thousands More H-2B Visas Available This Summer

DHS now accepting petitions

Roy Maurer By Roy Maurer May 7, 2019
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​Employers that can demonstrate that their business is at risk of failing without an infusion of foreign seasonal workers will have the chance to petition for extra help this summer.

The Department of Homeland Security (DHS) is authorizing 30,000 additional H-2B visas for use in fiscal year (FY) 2019, which runs through September 30.

The total is twice the number of additional visas issued in the last two years and on top of the 66,000 H-2B visas already allotted this fiscal year.

The extra visas are specifically for returning H-2B workers who held the visa in at least one of the past three fiscal years.

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"This development is especially welcome news for the landscaping, seafood processing, forestry and hospitality industries, all of whom depend heavily on this visa for temporary, seasonal workers," said Kenneth Levine, a partner in the Atlanta office of Freeman Mathis & Gary.

The H-2B visa program allows U.S. employers to hire foreign nationals during peak seasons. Congress has set the H-2B visa cap at 66,000 per fiscal year, with 33,000 visas granted for workers who begin jobs in the first half of the 12-month period (Oct. 1-March 31) and 33,000 visas for workers who begin jobs in the second half (April 1-Sept. 30).

Businesses and industry groups, citing labor workforce needs, have pressured the DHS for years to release additional H-2B visas. The additional H-2B numbers were authorized by Congress in the FY 2019 spending package passed in February after the H-2B visa cap for this fiscal year was reached. The legislation allows DHS to increase the H-2B cap for this fiscal year if, in consultation with the Department of Labor (DOL), it determines there are not enough U.S. workers to meet employer demand.

DHS authorized more H-2B visas after reaching the caps the previous two fiscal years as well, authorizing an additional 15,000 H-2B visas in both 2017 and 2018.

Half of all H-2B visas in 2017 went to agricultural and horticultural industries, according to the most recent U.S. Citizenship and Immigration Services data. Construction, forestry and logging, food services and food handlers accounted for most of the rest.

"While virtually every U.S. work visa program is the subject of intense and polarizing debate in Congress, this H-2B visa expansion proposal is an encouraging sign," Levine said. "This proposal should be seen as recognition by the current administration that U.S. businesses continue to experience significant difficulties in recruiting U.S. workers for temporary, seasonal positions."

To file an H-2B petition for a worker this summer, petitioners must meet all existing H-2B eligibility requirements, including having a valid, unexpired temporary labor certification approved by the DOL. Employers will need to submit Form I-129, the approved certification and an attestation on DOL Form ETA-9142-B-CAA-3.

Qualifying employers may submit petitions until the additional quota numbers are exhausted or until September 16, whichever is earlier. Petitions not approved before October 1 will be denied and fees will not be refunded.

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