U.S. ALERT- DHS Increases FY 2017 Limit On H-2B Temporary Nonagricultural Workers
The Departments of Homeland Security and Labor issued a
“temporary rule” on July 19, 2017, to increase the limit
of 66,000 H-2B nonimmigrant visas by authorizing the issuance of up
to an additional 15,000 visas through the end of fiscal year 2017.
The Departments said this is a one-time increase “based on a
time-limited statutory authority” and does not affect the H-2B
program in future fiscal years. They plan to promulgate regulations
to implement this determination. The rule is effective July 19,
2017, through September 30, 2017.
The Departments explained that because of the intense
competition for H-2B visas in recent years, the semi-annual visa
allocation, and the regulatory requirement that employers apply for
labor certification 75 to 90 days before the start date of work,
employers who wish to obtain visas for their workers under the
semi-annual allotment must act early to receive a temporary labor
certification (TLC) and file a petition with USCIS. As a result,
the Departments noted, the Department of Labor typically sees a
significant spike in TLC applications for H-2B visas for temporary
or seasonal jobs during the U.S.’s warm weather months. For
example, in FY 2017, of the TLC applications filed in January, the
Office of Foreign Labor Certification (OFLC) certified 54,827
worker positions for start dates of work on April 1, in excess of
the entire semi-annual visa allocation. U.S. Citizenship and
Immigration Services received sufficient H-2B petitions to meet the
second half of the fiscal year regular cap on March 13, 2017. This
was the earliest date that the cap was reached in a respective
fiscal year since FY 2009 and reflects an ongoing trend of high
program demand, the Departments explained.
Following consultation with the Secretary of Labor, the
Secretary of Homeland Security determined that the needs of some
U.S. businesses could not be satisfied in FY 2017 with U.S. workers
who are willing, qualified, and able to perform temporary
nonagricultural labor. The Secretary of Homeland Security
determined that it was appropriate to raise the numerical
limitation on H-2B nonimmigrant visas by up to an additional 15,000
for the remainder of the fiscal year, which ends September 30.
Consistent with such authority, the Secretary of Homeland Security
decided to increase the H-2B cap for FY 2017 by up to 15,000
additional visas for those U.S. businesses that attest to a level
of need such that, if they do not receive all of the workers under
the cap increase, they are likely to suffer irreparable harm; i.e.,
a permanent and severe financial loss. These businesses must attest
that they will likely suffer irreparable harm and must retain
documentation supporting this attestation, the Departments
note.
The Secretary of Homeland Security’s determination to
increase the numerical limitation was based on the conclusion that
“some businesses face closing their doors in the absence of a
cap increase.” The Departments noted that some stakeholders
reported that access to additional H-2B visas is essential to the
continued viability of some small businesses that play an important
role in sustaining the economy in their states, while others stated
that an increase is unnecessary and raises the possibility of
abuse. The Secretary of Homeland Security has deemed it
“appropriate, notwithstanding such risk of abuse, to take
immediate action to avoid irreparable harm to businesses; such harm
would in turn result in wage and job losses by their U.S. workers,
and other adverse downstream economic effects.”
The rule, which was published at 82 Fed. Reg. 32987 (July 19,
2017), is at https://www.gpo.gov/fdsys/pkg/FR-2017-07-19/html/2017-15208.htm.
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