- Employers may file FY 2021 H-2B visa petitions for returning workers from any country who have held H-2B status in fiscal years 2018, 2019 or 2020, after USCIS failed to receive enough petitions to exhaust the Northern Triangle carveout.
- USCIS will accept returning worker H-2B petitions until September 15, 2021 or until the remainder of the cap is reached, whichever is earlier.
- Petitioners must attest that their business is likely to suffer irreparable harm if they are unable to hire additional H-2B workers.
- Employers are advised to file their H-2B petitions as soon as possible; USCIS says that “the few” remaining H-2B slots are likely to go quickly.
A closer look
The Department of Homeland Security (DHS) has announced that employers may again file H-2B petitions for returning workers from any country of origin, pursuant to its supplemental H-2B regulation.
The regulation made 22,000 additional H-2B visas available for FY 2021, with 16,000 available to returning H-2B workers from any country, and 6,000 set aside for Northern Triangle nationals. However, per the regulation, because some Northern Triangle H-2B slots remain open, they have become available to returning H-2B workers from any country.
Employers may file these H-2B petitions for returning workers who have held H-2B status in fiscal years 2018, 2019, or 2020. U.S. Citizenship and Immigration Services (USCIS) will accept the filings until September 15, 2021 or until the cap is ultimately reached, whichever is earlier. USCIS says that only a few H-2B slots remain open, so the cap is likely to be quickly reached.
In May 2021, the Department of Homeland Security made 22,000 additional H-2B visas available for FY 2021. Of these, 16,000 were to be available to returning workers who previously held H-2B status in fiscal years 2018, 2019 or 2020, while the remaining 6,000 were reserved for nationals of the Northern Triangle countries of El Salvador, Guatemala and Honduras, regardless of whether they previously held H-2B status.
The 6,000 Northern Triangle carve-out was in keeping with President Biden’s Executive Order 14010, “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” If all 6,000 were not allocated by July 8, 2021, USCIS planned to make an announcement on its website by July 23, 2021, and the remainder of the carve-out would become available to nationals of any country, subject to the returning worker limitation.
The standard FY 2021 H-2B cap was reached on February 12, 2021, and the 16,000 supplemental cap was reached on June 3, 2021. USCIS now reports that while it received a substantial number of H-2B petitions on behalf of Northern Triangle nationals, it did not receive enough to meet the 6,000 visa number carve-out.
As with prior supplemental increases, employers will be required to attest that their business is at risk of irreparable harm without the additional workers. Employers will also 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. The supplemental increase applies to FY 2021 only and does not affect the H-2B program in future fiscal years.
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.