DOL: FY2022 H-2B Updates | Ogletree, Deakins, Nash, Smoak & Stewart, CP

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The H-2B program is available to employers who can demonstrate a temporary need to supplement their staff based on a one-time, seasonal, intermittent, or peak need. The program is typically used by employers with peak seasons, such as hotels, amusement parks, and landscapers. The past two years have shown an increase in demand from employers requesting a one-time need due to an inability to hire temporary or full-time workers in the United States.

The U.S. Department of Labor (DOL) announced that during the January 1-3, 2022 filing window, it received 7,875 ETA 9142B applications for temporary labor certification for the H-2B program. The applications included requests for 136,555 positions. The H-2B program is capped at 66,000 visas per fiscal year, with 33,000 available in the first half of the fiscal year (positions with start dates October 1 or later) and the remaining 33,000 reserved for the second half (positions with start dates of April 1 or later) of the fiscal year. The 7,875 applications were divided between groups A and F, and there are approximately 20,000 positions in each group.

While the H-2B cap was reached for the second half of FY2021 on February 12, 2021, the processing of Group A claims for the second half of FY2022 appears to be moving at a slower pace than the last year, as several Group A applications are awaiting notices of acceptance or notices of deficiency. Yet, based on the number of applications requesting 136,555 positions, it is highly likely that the H-2B cap will be reached in the month of February 2022, as the number of H-2B positions requested is the highest ever. lately. years. For reference, for the second half of fiscal 2021, 5,377 applications were submitted requesting 96,641 positions, and this year for the second half of 2022, an additional 39,914 positions are requested. As mentioned above, the second half of the year will only fill 33,000 positions, unless the cap is increased by the federal government.

On May 25, 2021, the U.S. Department of Homeland Security (DHS) and DOL issued a temporary final rule increasing the number of authorized H-2B positions for the second half of the fiscal year by an additional 22,000 positions. These included 16,000 positions for returning workers, “regardless of their country of nationality, in other words, workers who received H-2B visas or held H-2B status in fiscal 2018 , 2019 or 2020”, then “6,000 visas initially reserved for individuals coming from the Northern Triangle of Central America. El Salvador, Guatemala and Honduras are the countries of the Northern Triangle.

On January 28, 2022, DHS and DOL issued a temporary final rule supplementing the fiscal year 2022 cap for start dates requested before March 31, 2022, with an additional 20,000 H-2B visas. The temporary final rule provides that an additional 13,500 H-2B visas are “limited to returning workers, regardless of country of nationality… who received H-2B visas or held H-2B status in fiscal 2019, 2020 or 2021”. The remaining 6,500 H-2B visas will be reserved for nationals of El Salvador, Guatemala, Haiti and Honduras. Applications for this limited number of countries’ H-2B visas will need to include certifications that employers will only request for nationals of these four countries. Effective January 28, 2022, DHS began accepting H-2B applications for the supplemental cap and counts supplemental cap positions for start dates requested before March 31, 2022. In addition to supplemental H-2B visa positions , the temporary final rule also provides H-2B portability for non-frivolous H-2B petitions requesting a change of employer with an extension of H-2B status. This will allow H-2B visa holders to start working for new employers once their petitions are filed, and they will be able to start working for a period of generally up to sixty days before receiving approval for their H-petitions. 2B.

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