Temporary Increase in H-2B Nonimmigrant Visas for FY 2022

Only U.S. businesses that are suffering irreparable harm or will suffer impending irreparable harm (permanent and severe financial loss) if they cannot employ all the H-2B workers that they request on their Form I-129 petition for the second half of this fiscal year may file H-2B petitions under this temporary increase. In addition, employers may only request workers who have been issued an H-2B visa or otherwise granted H-2B status in FY 2019, 2020, or 2021, unless they are petitioning for workers under the 11,500 Northern Central American/Haiti allotment.

The joint temporary final rule provisions pertaining to the 35,000 supplemental visas do not apply to petitions that are not subject to the H-2B cap, including those petitions filed for 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.

On May 18, 2022, USCIS will begin accepting additional cap-subject H-2B petitions with employment start dates on or after April 1, 2022, through Sept. 30, 2022, and will consider 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 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;
• If applicable, conduct a fresh round of recruitment for U.S. workers, as described in the temporary final rule, (if Form I-129 is filed 30 or more days after the certified start date of work on the TLC);
• Submit an attestation on the DOL Form ETA 9142-B-CAA-6 in which the petitioner affirms, under penalty of perjury, that its business is suffering irreparable harm or will suffer impending irreparable harm if it cannot employ the requested H-2B workers, and that it is seeking to employ returning workers only, unless the worker is eligible under the Northern Central American/Haiti allotment. Please follow the DOL Form ETA 9142-B-CAA-6 Instructions when completing the attestation; and
• Agree to comply with all applicable labor and employment laws, including health and safety laws pertaining to COVID-19, as well as any rights to time off or paid time off to obtain COVID-19 vaccinations, or to reimbursement for travel to and from the nearest available vaccination site, and notify the workers in a language understood by the worker as necessary or reasonable, of equal access of nonimmigrants to COVID-19 vaccines and vaccination distribution sites.

NOTE: USCIS will not accept the expired ETA 9142-B-CAA from FY 2017, ETA 9142-B-CAA-2 from FY 2018, ETA 9142-B-CAA-3 from FY 2019, ETA 9142-B-CAA-4 from FY 2021, or ETA-9142-B-CAA-5 from the first half of FY 2022. We will reject any petition that does not include the new ETA 9142-B-CAA-6 attestation form for the second half of FY 2022 (or a copy of this new form) but is seeking H-2B workers under this FY 2022 supplemental allocation.

Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is suffering irreparable harm or will suffer impending irreparable harm if they are unable to employ all the H-2B workers requested in their petition. In addition, petitioners must retain evidence for a period of three years 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 2019, 2020, or 2021 unless the petition requests H-2B workers under the Northern Central American/Haiti allotment, who are not subject to a returning worker requirement. Petitioners must provide the documentation if DHS or DOL request it, as well as fully cooperate with any compliance reviews such as audits. Both DHS and DOL intend to conduct a significant number of post-adjudication audits to ascertain compliance with the attestation requirements as well as key worker protection provisions implemented through this temporary final rule.

DHS will also subject employers that have committed certain labor law violations in the H-2B program to additional scrutiny in the supplemental cap petition process.  These measures are aimed at ensuring compliance with H-2B program requirements and obligations.

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 issuing receipt notices or starting the 15-day premium processing clock, until we determine whether we need to conduct a selection process for those petitions received in the first five business days of filing and any such selection process 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. See 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 if the TLC is 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.

H-2B petitions filed for the supplemental visa allocation may generally request unnamed workers, but such workers will be subject to the returning worker requirement or the limitation to nationals of Northern Central American countries and Haiti.

A petition may be filed with only a single Form ETA-9142-B-CAA-6. A petitioner requesting both returning workers and Northern Central American/Haitian nationals who are exempt from the returning worker requirement must do so on separate petitions.

If requesting Northern Central American or Haitian nationals who are not subject to the returning worker requirement, the petitioner must mark the corresponding checkbox (Box #5) on the Form ETA-9142-B-CAA-6. If Box #5 is checked and the petition is requesting workers from other countries, USCIS may reject, or deny, or take other adverse action with respect to the petition.

If a petitioner files a petition seeking H-2B workers under this supplemental visa allocation and requests a change of status for a worker in the U.S., 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 U.S. in H-2B status at a port of entry. Check the Department of State processing times webpage to ensure that workers have sufficient time to apply for a visa.

USCIS will stop accepting petitions under this increase received after Sept. 15, 2022, or when the cap is reached, whichever occurs first. We will reject any petitions received after Sept. 15 or after the cap is reached, whichever is earlier. USCIS will deny all petitions not approved before Oct. 1, 2022, and will not refund any fees.

We will consider petitions requesting an employment start date after Sept. 30, 2022, towards the first half of the regular FY 2023 H-2B cap, subject to all eligibility requirements for FY 2023 H-2B cap filings.

In addition to making additional visas available under the FY 2022 time-limited authority, DHS is exercising its general H-2B regulatory authority to temporarily extend portability flexibility that allows certain H-2B workers who are already in the United States to begin work with a new employer after USCIS receives the H-2B petition (supported by a valid temporary labor certification) filed on their behalf, and before the H-2B petition is approved. Portability enables certain H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. With disruptions and uncertainty over visa processing and international travel caused by the COVID-19 pandemic, this additional flexibility allows U.S. employers to meet their labor needs, while allowing H-2B workers to change employers more quickly. This effective extension of a current and temporary flexibility is available if a nonfrivolous H-2B petition requesting an extension of stay is received on or before Jan. 24, 2023.

Petitions filed to extend the stay of H-2B workers who are already in the U.S. as H-2B workers are not subject to the cap. Thus, petitioners requesting to have these current H-2B workers immediately work for them after they file their petition with USCIS and before the petition is approved, under the portability provision of the temporary final rule, are not subject to the irreparable harm requirement. These petitioners, who are only seeking portability flexibilities for cap-exempt workers, are also not required to conduct a fresh round of recruitment or to submit Form ETA-9142-B-CAA-6.

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.