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Temporary H-2B Rule (May 18, 2022)

May 18, 2022 (2 min read)

Federal Register / Vol. 87, No. 96 / Wednesday, May 18, 2022

Exercise of Time-Limited Authority To Increase the Numerical Limitation for Second Half of FY 2022 for the H–2B Temporary Nonagricultural Worker Program and Portability Flexibility for H–2B Workers Seeking To Change Employers

"The Secretary of Homeland Security, in consultation with the Secretary of Labor, is exercising his time-limited Fiscal Year (FY) 2022 authority and again increasing the total number of noncitizens who may receive an H–2B nonimmigrant visa by authorizing the issuance of no more than 35,000 additional visas during the second half of FY 2022 for positions with start dates on or after April 1, 2022 through September 30, 2022, to those businesses that are suffering irreparable harm or will suffer impending irreparable harm, as attested by the employer on a new attestation form. This number is in addition to the 20,000 H–2B visas authorized by the Secretary in consultation with the Secretary of Labor in January of 2022 for petitions with start dates on or before March 31, 2022. In addition to making the additional 35,000 visas available under the FY 2022 time-limited authority, DHS is exercising its general H–2B regulatory authority to again provide temporary portability flexibility by allowing H–2B workers who are already in the United States to begin work immediately after an H–2B petition (supported by a valid temporary labor certification) is received by USCIS, and before it is approved. DATES: Effective dates: The amendments to title 8 of the Code of Federal Regulations in this rule are effective from May 18, 2022 through May 18, 2025. The amendments to title 20 of the Code of Federal Regulations in this rule are effective from May 18, 2022 through September 30, 2022, except for 20 CFR 655.66 which is effective from May 18, 2022 through September 30, 2025. Petition dates: DHS will stop accepting petitions received after September 15, 2022. DHS will not approve any H–2B petition under the provisions related to the supplemental numerical allocation after September 30, 2022. The provisions related to portability are only available to petitioners and H–2B nonimmigrant workers initiating employment through the end of January 24, 2023. Comment dates: The Office of Foreign Labor Certification within the U.S. Department of Labor will be accepting comments in connection with the new information collection Form ETA– 9142B–CAA–6 associated with this rule until July 18, 2022."

The "irreparable harm" attestation form is here.  The instructions are here.  My 2017 Expert Analysis - Opinion, H-2B Visas And The Making Of An 'Ultra Vires' Regulation, is here (and still fresh as a daisy, sad to say.)