Employers seeking to file H-2B petitions for returning workers are now able to do so, U.S. Citizenship and Immigration Services (USCIS) announced.
Returning workers are those who were issued an H-2B visa or granted H-2B status in fiscal years 2018, 2019 or 2020. USCIS will accept petitions for returning workers until Sept. 15 or until the remainder of the cap on such visas is reached, whichever occurs first.
We've rounded up articles from SHRM Online and other sources to provide context.
Northern Triangle Carveout
USCIS previously announced having received enough petitions for the 16,000 visas initially made available for returning workers this year. But the agency did not receive enough petitions to reach the 6,000 visas allocated specifically for workers from the Northern Triangle (El Salvador, Guatemala and Honduras) countries, a special program started by the Biden administration. The remaining visas are now available to eligible H-2B returning workers, regardless of their country of origin.
Need to Move Fast
Immigration attorneys advise filing H-2B petitions as soon as possible. USCIS said that "the few" remaining H-2B slots are likely to go quickly. Employers must file a new Form I-129, together with an approved and valid temporary labor certification that states an employment start date for the second half of the fiscal year, and attest that the workers are returning workers. Employers are also required to attest that their business is at risk of irreparable harm without the additional workers. Evidence of harm is not required, but supporting documentation should be retained on file for three years.
(Fragomen)
H-2B Visas Increased This Summer
An additional 22,000 H-2B visas were made available for employers seeking seasonal foreign guest workers this summer. The fiscal year 2021 H-2B cap was reached in February when the Department of Labor received applications for a total of 98,000 workers vying for one of the coveted 33,000 spring/summer slots. Since then, employers and a bipartisan group of lawmakers had been calling on the Biden administration to extend additional seasonal visas for the current fiscal year ending in October. This marks the fifth year in a row that additional H-2B visas were released in response to pressure from seasonal employers and lawmakers.
Not All Countries Are Eligible for H-2B Visas
There are 83 approved countries whose citizens are eligible for H-2B visas in 2021. The eligibility designation expires after one year and must be renewed.
Several factors are considered when deciding which countries to include for eligibility, including the country's cooperation in receiving its citizens who are subject to a final order of removal from the U.S., and the number of orders of removal executed against nationals of that country. In 2021, citizens from Samoa and Tonga were removed from the eligibility list for H-2B visas. The Philippines was returned to the list of eligible countries.
[Want to learn more about employment-based immigration? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]