The Department of Homeland Security added a supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program.
The additional visas will be made available in the coming months via a temporary final rule in the Federal Register. The Department of Homeland Security said 6,000 of the visas will be reserved for nationals of the Northern Triangle countries of Honduras, El Salvador and Guatemala as part of Executive Order 14010.
Employers seeking H-2B workers must test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing, qualified and available to do the temporary work for which they seek a prospective foreign worker and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The supplemental increase will require businesses seeking H-2B workers to engage in additional recruitment efforts for U.S. workers.
“The H-2B program is designed to help U.S. employers fill temporary seasonal jobs, while safeguarding the livelihoods of American workers,” said Secretary of Homeland Security Alejandro N. Mayorkas. “This supplemental increase also demonstrates DHS’s commitment to expanding lawful pathways for opportunity in the United States to individuals from the Northern Triangle.”
The additional visas will only be made available to employers that attest that, if they do not receive workers under the cap increase, they are likely to suffer irreparable harm. Additionally, the temporary final rule will allow employers to immediately hire H-2B workers who are already present in the U.S. without waiting for approval of the new petition. The supplemental increase is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years according to the DHS.
Under the Immigration and Nationality Act (INA), as amended, Congress has set the H-2B visa cap at 66,000 per fiscal year, with 33,000 visas available to workers who begin employment in the first half of the fiscal year (Oct. 1 to March 31) and the remaining 33,000 (plus any unused visas from the first half of the fiscal year) available for workers who begin employment in the second half of the fiscal year (April 1 to Sept. 30). Unused H-2B numbers from one fiscal year do not carry over into the next fiscal year.
Section 105 of the Consolidated Appropriations Act of 2021 authorizes the Secretary of Homeland Security, after consulting with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied with U.S. workers who are willing, qualified and able to perform temporary nonagricultural labor, to provide supplemental H-2B visas for fiscal year 2021. On Feb. 12, 2021, USCIS received enough petitions to meet the congressionally mandated H-2B cap for the second half of the fiscal year.
