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DHS, July 17, 2017 - "U.S. businesses in danger of suffering irreparable harm due to a lack of available temporary nonagricultural workers will be able to hire up to 15,000 additional temporary nonagricultural workers under the H-2B program under a final rule that the Departments of Homeland Security and Labor submitted to the Federal Register today. [Here is the official FR version.] To qualify for the additional visas, petitioners must attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B nonimmigrant workers during fiscal year (FY) 2017.
After consulting with Secretary of Labor Alexander Acosta, Secretary of Homeland Security John Kelly determined there are not enough qualified and willing U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of some American businesses in FY 2017.
“Congress gave me the discretionary authority to provide temporary relief to American businesses at risk of significant harm due to a lack of available seasonal workers,” said DHS Secretary John Kelly. “As a demonstration of the Administration’s commitment to supporting American businesses, DHS is providing this one-time increase to the congressionally set annual cap.”
The H-2B Temporary Nonagricultural Worker program was designed to serve U.S. businesses unable to find a sufficient number of qualified U.S. workers to perform nonagricultural work of a temporary nature. Congress set the annual H-2B cap at 66,000. A maximum of 33,000 H-2B visas are available during the first half of the fiscal year, and the remainder, including any unused H-2B visas, is available starting April 1 through September 30. On March 13, 2017, USCIS received sufficient H-2B petitions to meet the full FY 2017 statutory cap of 66,000. In May, Congress delegated its authority to the Secretary to increase the number of temporary nonagricultural work visas available to U.S. employers through September 30. The Secretary took the intervening time to consult with the Secretary of Labor on the issue and to properly develop this rule in accordance with Congressional requirements.
Starting this week, eligible petitioners for H-2B visas can file Form I-129, Petition for a Nonimmigrant Worker and must submit a supplemental attestation on Form ETA 9142-B-CAA with their petition. A new tip line to report general H-2B abuse and employer violations has also been established.
Details on eligibility and filing requirements will be available in the final rule and on a new uscis.gov webpage to be published when the final rule is posted for public inspection. This page will also include information on how individuals can report abuse in the program.
If members of the public have information that a participating employer may be abusing this program, DHS invites them to submit information to ReportH2BAbuse@uscis.dhs.gov."
EDITOR'S NOTE AND FULL DISCLOSURE:
"A significant portion of my practice involves representing H-2B employers. In my opinion, the "irreparable harm" attestation requirement is ultra vires and will make the add-on unworkable for most employers." - Daniel M. Kowalski