Government Announces A One-Time Increase in H-2B Visas

On July 19, 2017, the U.S. Department of Homeland Security (“DHS”), along with the U.S. Department of Labor (“DOL”), published a final rule increasing the number of H-2B visas available for the 2017 fiscal year by 15,000 visas. H-2B visas are non-immigrant visas which allow United States businesses to hire non-agricultural workers for temporary or seasonal employment. Currently, there is a statutory limit of 66,000 H-2B visas (33,000 visas for the first half of the year,  and 33,000 visas for the second half of the year) which can be issued each fiscal year. Certain H-2B workers are exempt from the cap such as workers who change employers or extend their employment.

As part of the FY 2017 Consolidated Appropriations Act passed by Congress, DHS Secretary John Kelly was given the authority to increase the number of H-2B visas to be issued during the 2017 fiscal year. On July 19, it was announced that an additional 15,000 H-2B visas (on top of the 66,000 visas already allotted) would be issued. In order for businesses to take advantage of these additional H-2B visas, there are several stipulations.

First, like all H-2B petitions subject to the cap, U.S. Citizenship and Immigration Services (“USCIS”) will review petitions for these 15,000 visas on a first come first served basis. Because there is a high demand for H-2B visas, employers looking to hire H-2B workers should get their application into USCIS as soon as possible.

Second, these additional visas will only be available for positions with an employment start date on or before September 30, 2017.  Any H-2B petitions with employment start dates after September 30, 2017, will be adjudicated under the 2018 fiscal year cap.

Finally, the final rule released by DHS and DOL places a restriction on which businesses qualify for the additional H-2B visas. The 15,000 additional visas will only be available to businesses which can demonstrate to USCIS that they will “likely suffer irreparable harm”, without the ability to employ H-2B workers. In order to show that it will likely suffer irreparable harm, a business will be required to show USCIS, that if its H-2B petition is denied, the business will suffer “permanent and severe financial loss”. Showing that a business would suffer irreparable harm, is not one of the normal requirements for obtaining H-2B visas.

In regards to H-2B petitions for the 2018 fiscal year, it is important to note, that over the last several days, DHS has repeatedly stated that the extra H-2B visas for  2017 fiscal year is a one time increase. Therefore, businesses looking to hire H-2B workers during the 2018 fiscal year should not count on additional H-2B visas being issued if the 2018 cap is hit. During the past several years, the H-2B cap has been hit. Therefore, we continue to recommend that employers looking to hire H-2B workers in 2018 begin to process their H-2B petitions as possible.

If you are a business looking at hiring H-2B workers, Hartzman Law Firm is here to help. Our law firm has extensive experience filing H-2B petitions for both large and small companies around the United States. For more information, contact our principal attorney, Pittsburgh immigration lawyer Daniel Hartzman, at dhartzman@hartzmanlawfirm.com, or call our office at (412) 495-9849.