DHS Will Make Additional H-2B Visas Available for Employment in the Second Half of FY 2022

Employers will soon be able to petition for an additional 35,000 H-2B quota numbers for temporary non-agricultural employment that begins on or after April 1, 2022, through September 30, 2022. Of the 35,000 visas, 23,500 will be available to returning H-2B workers and 11,500 will be reserved for nationals of El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they are H-2B returning workers. Employers will likely be required to attest that their business is at risk of irreparable harm without additional H-2B workers. DHS is expected to issue petition filing instructions for the additional quota numbers in the coming weeks.

A closer look

An additional 35,000 H-2B visa numbers will be authorized for temporary non-agricultural employment in fiscal year (FY) 2022, the Department of Homeland Security (DHS) has announced. This H-2B cap supplement will be available to U.S. employers seeking to employ additional workers on or after April 1, 2022, through September 30, 2022. The FY 2022 omnibus spending law, which was enacted earlier this month, permits the agency to authorize additional H-2B nonimmigrant visa numbers beyond the fiscal year statutory quota.

Of the FY 2022 supplemental visas, 23,500 will be available to returning workers who had already been granted H-2B status during one of the last three fiscal years. The remaining 11,500 visas will be reserved for nationals of El Salvador, Guatemala, Haiti, and Honduras, regardless of whether they ever held H-2B status. The FY 2022 H-2B cap for the second half of FY 2022 was reached on February 25, 2022, so these FY 2022 supplemental numbers provide an additional opportunity for certain H-2B employers. For the H-2B supplemental quota of 20,000 visas for the first half of FY 2022, USCIS continued to accept H-2B petitions through March 31, 2022 for H-2B positions with start dates on or before March 31, 2022.

The supplemental increase applies to FY 2022 only and does not affect the H-2B program in future fiscal years.

As with prior supplemental increases, employers are likely to be required to attest that their business is at risk of irreparable harm without the additional workers. Employers are also likely to be able to hire workers who are already present in the United States in H-2B status without waiting for approval of the new petition. DHS is expected to clarify these issues when it releases filing instructions for the supplemental quota numbers.

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 for the offered positions; 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 mean businesses seeking new H-2B workers will need to engage in additional recruitment efforts.

In the coming weeks, DHS is expected to publish a temporary final rule setting forth filing procedures for the additional H-2B numbers. Petitioners are expected to be required to submit USCIS Form I-129, a valid temporary labor certification approved by DOL and an attestation on a separate DOL form.