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Employers must submit attestation of harm to receive seasonal worker visas
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Summer seasonal employers will have access to 15,000 additional H-2B visas for temporary guest workers through the remainder of the fiscal year (FY) that ends Sept. 30.
The Department of Homeland Security (DHS) announced July 17 a one-time, 45 percent increase in H-2B visas over the 33,000 visas normally issued for the second half of the fiscal year.
The visas will not be limited by industry, geographic location or type of employer, but petitioners must attest, under penalty of perjury, that their business is likely to suffer "irreparable harm" without access to the guest workers and comply with certification and recruitment requirements.
DHS spokesman David Lapan said that irreparable harm is being defined as "permanent and severe financial loss."
Employers can file Form I-129 petitions and the supplemental attestation found in the Federal Register announcement to U.S. Citizenship and Immigration Services (USCIS) starting July 19.
[SHRM members-only toolkit: Obtaining U.S. Employment Visas]
Lapan said that USCIS may request evidence supporting irreparable harm, and employers will be required to retain evidence supporting those claims for a three-year period. Employers must also have a valid, unexpired labor certification from the Department of Labor indicating that there are no qualified U.S. workers available for the positions.
The attestation showing irreparable harm could be difficult for some employers, said Loan Huynh, an attorney in the Minneapolis office of Fredrikson & Byron. "I'm not sure how USCIS will evaluate the documents [showing harm]," she said. "Employers could show that they had 20 H-2B workers last year and none this year and they have contracts that need to be performed. What it comes down to is evidence that you need these workers."
DHS outlined that evidence may include, among other things:
"In addition, employers must conduct additional recruitment, placing a new job order with the State Workforce Agency and post a newspaper advertisement," Huynh said. "Employers are questioning whether it's worth it or not," she added, especially with the high likelihood of being audited by the Department of Labor's Wage and Hour Division. Wage and hour investigations focused on guest workers have increased and experts believe they will continue to increase in the future.
"This rule was written in such a way to set people up to be audited," she said.
Demand Trending Up
The H-2B visa program was created to serve U.S. businesses unable to find sufficient numbers of qualified U.S. workers to perform temporary, low-skilled, nonagricultural work. The visas are popular in seasonal industries such as landscaping, seafood processing, recreation and hospitality. Congress has set the H-2B visa cap at 66,000 per fiscal year, with 33,000 visas granted for workers who begin employment in the first half of the 12-month period (Oct. 1-March 31) and 33,000 visas for workers who begin employment in the second half (April 1-Sept. 30).
All 66,000 H-2B visas for FY 2017 were issued by March 16, the earliest date that the cap was reached since FY 2009, reflecting an ongoing trend of high demand. In May, Congress gave the DHS authority to increase H-2B visas up to 70,000 through the end of the fiscal year.
Industries that count on the visas voiced tempered approval for the announcement, pointing out that the increase is likely too late, with spring and half of summer already past. The soonest that employers could receive approved petitions would be early August, and they would still need to contract with workers abroad and bring them into the U.S.
"I'm concerned that it's too late for some employers, being a month or more into their season," Huynh said.
"While the news is no doubt welcome in the H-2B community, it's a band-aid and advocates for expanding the H-2B program in terms of the numerical cap and also by exempting returning workers from the cap are pushing for a permanent legislative fix," said Greg Siskind, a founding partner of law firm Siskind Susser, based in Memphis.
"Though we fear this gesture may be too little, too late for thousands of small businesses that rely on legal, highly vetted seasonal guest workers to meet their peak season needs, the additional visas may help save some small businesses this year," said the H-2B Workforce Coalition, an alliance of more than 40 industry associations, in a statement. "From landscapers in Colorado to innkeepers in Maine to seafood processors along the gulf coast to carnivals nationwide, we hope the visa expansion will help some businesses avoid substantial financial loss, and in some cases, prevent early business closures during their peak season."
The announcement also frees the nomination of Lee Francis Cissna, President Donald Trump's pick for USCIS director, which had been placed on hold by Sen. Thom Tillis, R-N.C., to pressure the DHS into issuing more H-2B visas. The senator's office said he will release that hold.
Cissna, a veteran policymaker, is expected to be confirmed.
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