Temporary Increase in H-2B Nonimmigrant Visas for FY 2019

On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a temporary final rule increasing the numerical limit (cap) on H-2B nonimmigrant visas by up to 30,000 additional visas through the end of fiscal year (FY) 2019. These visas are available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. In addition, these visas are available only for returning workers (workers who received an H-2B visa or otherwise received granted H-2B status in one of the last three fiscal years).  See “Who Can Petition for the Additional Visas”.

This increase is based on a time-limited statutory authority that expires at the end of the day on Sept. 30, 2019. It does not affect the H-2B program in future fiscal years.

The Secretary of DHS decided to increase the cap in accordance with section 105 of division H of the Consolidated Appropriations Act, 2019, Public Law 116-6 (FY 2019 Omnibus). In the FY 2019 Omnibus, Congress again delegated its authority to the Secretary to set a numerical cap for the remainder of the fiscal year. Before authorizing the additional visa numbers, the Secretary of DHS, in consultation with the Secretary of Labor, considered the needs of American businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program.

Who Can Petition for the Additional Visas

Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request on their Form I-129 petition for this fiscal year may file under this temporary increase in the H-2B cap. In addition, employers may only request H-2B returning workers (in other words, workers who have been issued an H-2B visa or otherwise granted H-2B status) in one of the last three fiscal years (FY 2016, 2017, or 2018).

The joint temporary final rule does not apply to petitions that are not subject to the H-2B cap, including those petitions filed in connection with an H-2B extension of stay request or on behalf of certain fish roe processors. Those petitions may continue to be filed under the normal rules of the H-2B program.

How to File an H-2B Petition

On May 8, 2019, USCIS began accepting additional cap-subject H-2B petitions with employment start dates on or before Sept. 30, 2019, and is considering them in the order they are received.

To file an H-2B petition under this time-limited increase to the H-2B cap, petitioners must:

• Meet all existing H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from the DOL that is valid for the entire employment period stated on the petition). As a reminder, the employment start date on the petition must match the employment start date on the TLC, even if that date has passed;
• Conduct a fresh round of recruitment for U.S. workers if Form I-129 is filed 45 or more days after the certified start date of work on the TLC; and
• Submit an attestation on Form ETA 9142-B-CAA-3 in which the petitioner affirms, under penalty of perjury, that its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year and that each worker it requested and/or instructed to apply for a visa is a returning worker as required by the rule. Please follow the Form ETA 9142-B-CAA-3 Instructions when completing the attestation.

NOTE: USCIS will not accept the expired ETA 9142-B-CAA from FY 2017 or ETA 9142-B-CAA-2 from FY 2018. USCIS will reject any petition that does not include the new ETA 9142-B-CAA-3 attestation form for fiscal year 2019 (or a copy of this new form). 

Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is likely to suffer irreparable harm if they are unable to employ all the H-2B workers requested in their petition. In addition, petitioners must retain evidence that the employer requested and/or instructed that each of the H-2B workers petitioned under this rule were issued H-2B visas or otherwise granted H-2B status in FY 2016, 2017, or 2018 for a period of three years. Petitioners must provide the documentation if DHS or DOL request it.

Important Filing Information

H-2B petitioners may continue to request premium processing together with their H-2B petition at additional cost. However, please note that USCIS will not begin processing the petitions filed, including issuance of receipt notices or starting the 15-day premium processing clock, until after USCIS determines whether it is required to conduct a lottery from those petitions received in the first five business days of filing and any such lottery has been completed.

Generally, the employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC according to 8 CFR 214.2(h)(6)(iv)(D). However, for purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed. However, the TLC must still be otherwise valid. Petitions with employment start dates that do NOT match the TLC’s employment start date will be rejected and returned with fees. USCIS may deny or reject a petition submitted without the required attestation.

Petitioners should provide a duplicate copy of their petition and all supporting documentation when they file. Failure to submit duplicate copies may delay the Department of State from issuing a visa to otherwise eligible applicants.

If a petitioner files a petition seeking H-2B workers under this cap increase and requests a change of status for a worker in the United States, USCIS will deny the change of status request but will adjudicate the petition to determine eligibility for H-2B classification.

If USCIS approves the H-2B petition, the worker would need to obtain the H-2B visa, if applicable, at a consular post abroad before seeking admission to the United States in H-2B status at a port of entry. Check the Department of State processing times web page to ensure that workers have sufficient time to apply for a visa.

Filing Deadlines

USCIS will stop accepting petitions under this increase on Sept. 16, 2019, or when the cap is reached, whichever occurs first. USCIS will reject any petitions received after Sept. 16 or after the cap is reached, whichever is earlier. USCIS will deny all petitions not approved before Oct. 1, 2019, and will not refund any fees.

USCIS will consider petitions requesting an employment start date on or after Oct. 1, 2019, towards the FY 2020 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2020 H-2B cap filings.

Reporting Fraud

To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.