The H-2B program is available to employers that can demonstrate a temporary need to supplement their staffs based on a one-time, seasonal, intermittent, or peak-load need basis. The program is generally used by employers with peak busy seasons, such as hotels, amusement parks, and landscapers. The last two years have shown an increase in demand from employers requesting one-time need due to an inability to hire temporary or full-time workers within the United States.
The U.S. Department of Labor (DOL) announced that during the filing window of January 1–3, 2022, it had received 7,875 ETA 9142B, temporary labor certification applications for the H-2B program. The applications included requests for 136,555 positions. The H-2B program is capped at 66,000 visas per fiscal year, with 33,000 available in the first half of the fiscal year (positions with start dates of October 1 or later) and the remaining 33,000 reserved for the second half (positions with start dates of April 1 or later) of the fiscal year. The 7,875 applications have been split into Group A through Group F, and there are approximately 20,000 positions within each group.
While the H-2B cap was reached for the second half of fiscal year (FY) 2021 on February 12, 2021, the processing of Group A applications for the second half of FY 2022 appears to be moving at a slower rate than last year, as multiple Group A applications are awaiting notices of acceptance or notices of deficiency. Still, based on the number of applications requesting 136,555 positions, there is a high likelihood that the H-2B cap will be met in the month of February 2022, as the number of H-2B positions requested is the highest it has been in recent years. For reference, for the second half of FY 2021 there were 5,377 applications filed requesting 96,641 positions, and this year for the second half of 2022 there are 39,914 additional positions being requested. As mentioned above, the second half of the year will allow for only 33,000 positions to be filled, unless there is an increase to the cap by the federal government.
On May 25, 2021, the U.S. Department of Homeland Security (DHS) and the DOL published a temporary final rule increasing the number of H-2B positions allowed for the second half of the fiscal year by an additional 22,000 positions. These were comprised of 16,000 positions for returning workers, “regardless of country of nationality, in other words, those workers who were issued H-2B visas or held H-2B status in fiscal years 2018, 2019, or 2020,” and then “6,000 visas initially reserved for individuals coming from the Northern Triangle of Central America.” El Salvador, Guatemala, and Honduras are the Northern Triangle countries.
On January 28, 2022, DHS and DOL published a temporary final rule supplementing the FY 2022 cap for requested start dates prior to March 31, 2022, with an additional 20,000 H-2B visas. The temporary final rule provides that 13,500 supplemental H-2B visas are “limited to returning workers, regardless of country of nationality … who were issued H-2B visas or held H-2B status in fiscal years 2019, 2020, or 2021.” The remaining 6,500 H-2B visas will be reserved for nationals of El Salvador, Guatemala, Haiti, and Honduras. Applications for this limited number of country H-2B visas will be required to include attestations that the employers will only be petitioning for nationals of those four countries. As of January 28, 2022, DHS has begun accepting H-2B petitions for the supplemental cap and is counting the supplemental cap positions for requested start dates prior to March 31, 2022. In addition to the supplemental H-2B visa positions, the temporary final rule also provides for H-2B portability for nonfrivolous H-2B petitions requesting a change of employer with an extension of H-2B status. This will allow H-2B visa holders to begin working for new employers once their petitions are filed, and they can begin working for a period generally up to sixty days prior to receiving approval of their H-2B petitions.
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the H-2B visa cap and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
