AILA Quicktake #265: Additional 30,000 H-2B Visas Made Available for FY2019
DHS and DOL published a temporary final rule increasing the H-2B cap for FY2019 by an additional 30,000 visas. Diane Rish, AILA’s Associate Director of Government Relations, discusses the key aspects of the H-2B rule that the AILA members should be aware of.
Video Transcript
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Yesterday, the Departments of Homeland Security and Labor published a temporary final rule
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increasing the H-2B cap for FY2019 by an additional 30,000 visas.
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The additional H-2B visas are available only to employers which attest
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that they will be likely suffer irreparable harm without the ability to employ
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all the H-2B workers requested in their petition.
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In addition, these visas are available only for returning workers
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who received an H-2B visa or were granted H-2B status in one of the last three fiscal years.
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As in previous years, this increase is based on a time-limited statutory authority,
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and does not affect the H-2B program in future fiscal years.
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On Wednesday, May 8th, USCIS began accepting petitions for these supplemental H-2B visas
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and will continue accepting petitions until the supplemental cap has been reached,
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or September 16, 2019, whichever is sooner.
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Employers who are eligible for H-2B visas under the supplemental cap
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must submit Form I-129, along with a valid Temporary Labor Certification
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and attestation on Form ETA-9142-B-CAA-3 to USCIS.
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On the attestation form, the employer must affirm that its business will likely suffer
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irreparable harm if it cannot hire all the requested H-2B workers
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before the end of the fiscal year.
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On the same attestation form, employers must also attest that each worker
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it requested and/or instructed to apply for a H-2B visa is a returning worker.
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Same as last year, irreparable harm is defined as “permanent and severe financial loss.”
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A few things that AILA members should be aware of
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when assisting clients to apply for these additional H-2B visas.
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First, petitioners who file an I-129 petition 45 or more days
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after the certified start date of work on the temporary labor certification
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must also conduct a fresh round of recruitment for U.S. workers.
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Secondly, petitioners must retain evidence and records
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demonstrating that their business is likely to suffer irreparable harm
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if they are unable to employ all the H-2B workers requested in their petition.
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Petitioners must also retain evidence that the employer requested and/or instructed that
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each of the H-2B workers petitioned under this rule were issued H-2B visas,
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or otherwise granted H-2B status, in one of the last three fiscal years.
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And finally, the decision on whether to run a lottery will be made by USCIS
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based on the number of petitions it receives.
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USCIS will not begin processing petitions until a determination is made
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concerning whether it will be required to conduct a lottery for those petitions received
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within the first five business days that filings may be accepted,
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and any such lottery has been completed.
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For information about the temporary final rule and frequently asked questions,
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don’t miss AILA’s Practice Alert, entitled
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Additional 30,000 H-2B Visas Made Available for the Remainder of FY2019.
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Also a copy of the H-2B temporary final rule, the attestation form and its instructions,
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and USCIS’s instructions on how to file an H-2B petition
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can all be found on the AILA website.
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Finally, if you are an AILA member and have not done so already,
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we encourage you to join AILA’s H-2 Interest Group,
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where you can exchange ideas, network, and get advice with other AILA practitioners.
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To join, please email: membership@aila.org.