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

0:00:00.000–0:00:10.060
Yesterday, the Departments of Homeland Security and Labor published a temporary final rule
0:00:10.060–0:00:16.320
increasing the H-2B cap for FY2019 by an additional 30,000 visas.
0:00:16.320–0:00:20.300
The additional H-2B visas are available only to employers which attest
0:00:20.300–0:00:24.760
that they will be likely suffer irreparable harm without the ability to employ
0:00:24.760–0:00:28.500
all the H-2B workers requested in their petition.
0:00:28.500–0:00:32.300
In addition, these visas are available only for returning workers
0:00:32.300–0:00:39.040
who received an H-2B visa or were granted H-2B status in one of the last three fiscal years.
0:00:39.040–0:00:44.730
As in previous years, this increase is based on a time-limited statutory authority,
0:00:44.730–0:00:48.540
and does not affect the H-2B program in future fiscal years.
0:00:55.220–0:01:01.160
On Wednesday, May 8th, USCIS began accepting petitions for these supplemental H-2B visas
0:01:01.160–0:01:05.860
and will continue accepting petitions until the supplemental cap has been reached,
0:01:05.860–0:01:10.440
or September 16, 2019, whichever is sooner.
0:01:10.440–0:01:14.160
Employers who are eligible for H-2B visas under the supplemental cap
0:01:14.160–0:01:19.940
must submit Form I-129, along with a valid Temporary Labor Certification
0:01:19.940–0:01:28.440
and attestation on Form ETA-9142-B-CAA-3 to USCIS.
0:01:28.440–0:01:33.240
On the attestation form, the employer must affirm that its business will likely suffer
0:01:33.240–0:01:37.800
irreparable harm if it cannot hire all the requested H-2B workers
0:01:37.800–0:01:40.320
before the end of the fiscal year.
0:01:40.320–0:01:45.680
On the same attestation form, employers must also attest that each worker
0:01:45.680–0:01:51.500
it requested and/or instructed to apply for a H-2B visa is a returning worker.
0:01:51.500–0:01:57.600
Same as last year, irreparable harm is defined as “permanent and severe financial loss.”
0:02:03.820–0:02:05.860
A few things that AILA members should be aware of
0:02:05.860–0:02:10.160
when assisting clients to apply for these additional H-2B visas.
0:02:10.160–0:02:15.580
First, petitioners who file an I-129 petition 45 or more days
0:02:15.580–0:02:20.080
after the certified start date of work on the temporary labor certification
0:02:20.080–0:02:25.020
must also conduct a fresh round of recruitment for U.S. workers.
0:02:25.020–0:02:28.620
Secondly, petitioners must retain evidence and records
0:02:28.620–0:02:32.360
demonstrating that their business is likely to suffer irreparable harm
0:02:32.360–0:02:37.200
if they are unable to employ all the H-2B workers requested in their petition.
0:02:37.200–0:02:42.080
Petitioners must also retain evidence that the employer requested and/or instructed that
0:02:42.080–0:02:47.000
each of the H-2B workers petitioned under this rule were issued H-2B visas,
0:02:47.000–0:02:52.000
or otherwise granted H-2B status, in one of the last three fiscal years.
0:02:52.000–0:02:56.280
And finally, the decision on whether to run a lottery will be made by USCIS
0:02:56.280–0:02:58.960
based on the number of petitions it receives.
0:02:58.960–0:03:03.300
USCIS will not begin processing petitions until a determination is made
0:03:03.300–0:03:07.740
concerning whether it will be required to conduct a lottery for those petitions received
0:03:07.740–0:03:11.580
within the first five business days that filings may be accepted,
0:03:11.580–0:03:14.740
and any such lottery has been completed.
0:03:14.740–0:03:19.140
For information about the temporary final rule and frequently asked questions,
0:03:19.160–0:03:21.700
don’t miss AILA’s Practice Alert, entitled
0:03:21.700–0:03:28.400
Additional 30,000 H-2B Visas Made Available for the Remainder of FY2019.
0:03:28.400–0:03:34.560
Also a copy of the H-2B temporary final rule, the attestation form and its instructions,
0:03:34.560–0:03:38.240
and USCIS’s instructions on how to file an H-2B petition
0:03:38.240–0:03:41.160
can all be found on the AILA website.
0:03:41.160–0:03:44.260
Finally, if you are an AILA member and have not done so already,
0:03:44.260–0:03:47.420
we encourage you to join AILA’s H-2 Interest Group,
0:03:47.420–0:03:52.620
where you can exchange ideas, network, and get advice with other AILA practitioners.
0:03:52.620–0:03:57.660
To join, please email: membership@aila.org.

Cite as AILA Doc. No. 19050935.