As the nation’s economy continues to reopen safely, the Department of Homeland Security (DHS) is taking action to ensure that American businesses are equipped with the resources needed to recover successfully and contribute to the economic health of local communities. In light of increased labor demands, DHS is announcing a supplemental increase of 22,000 visas for the H-2B Temporary Non-Agricultural Worker program. The additional visas will be made available in the coming months via a temporary final rule in the Federal Register. Furthermore, to expand lawful pathways for opportunity in the United States consistent with the President’s Executive Order 14010 on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border,” 6,000 of these visas will be reserved for nationals of the Northern Triangle countries of Honduras, El Salvador, and Guatemala.
Employers seeking H-2B workers must test the U.S. labor market and certify in their petitions that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work for which they seek a prospective foreign worker; and that employing H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The supplemental increase will require businesses seeking H-2B workers to engage in additional recruitment efforts for U.S. workers.
“The H-2B program is designed to help U.S. employers fill temporary seasonal jobs, while safeguarding the livelihoods of American workers,” said Secretary of Homeland Security Alejandro N. Mayorkas. “This supplemental increase also demonstrates DHS’s commitment to expanding lawful pathways for opportunity in the United States to individuals from the Northern Triangle.”
During recent engagement with American businesses that rely on the H-2B program during the summer months, employers expressed an immediate need for supplemental, temporary guest workers for this fiscal year. Businesses across the country, despite attempts at recruitment and hiring of U.S. workers, report critical vacancies. This leaves already vulnerable businesses in danger of significant potential revenue loss.
The additional visas will only be made available to employers that attest that, if they do not receive workers under the cap increase, they are likely to suffer irreparable harm. Additionally, the temporary final rule will allow employers to immediately hire H-2B workers who are already present in the United States without waiting for approval of the new petition. This portability provision is a critical safeguard that protects both U.S. and H-2B workers, while also providing flexibilities to employers during a time when travel remains challenging. The supplemental increase is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years.
Under the Immigration and Nationality Act (INA), as amended, Congress has set the H-2B visa cap at 66,000 per fiscal year, with 33,000 visas available to workers who begin employment in the first half of the fiscal year (Oct. 1 – March 31) and the remaining 33,000 (plus any unused visas from the first half of the fiscal year) available for workers who begin employment in the second half of the fiscal year (April 1 – Sept. 30). Unused H-2B numbers from one fiscal year do not carry over into the next fiscal year. Section 105 of the Consolidated Appropriations Act of 2021 authorizes the Secretary of Homeland Security, after consulting with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor, to provide supplemental H-2B visas for fiscal year 2021. On February 12, 2021, USCIS received enough petitions to meet the congressionally mandated H-2B cap for the second half of the fiscal year.