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.

Details on eligibility and filing requirements are also available

at https://www.uscis.gov/working-united-states/temporary-workers/one-time-increase-h-2b-nonimmigrant-visas-fy-2017.

The page includes an email address for reporting fraud and abuse at

ReportH2Babuse@uscis.dhs.gov.

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