The US Department of Homeland Security and the US Department of Labor issued a joint temporary final rule that provides an additional 22,000 H-2B temporary nonagricultural guest worker visas to employers for the second half of the federal fiscal year ending Sept. 30. The H-2B visa program typically provides 66,000 visas per year to seasonal nonfarm employers such as landscapers, fisheries and resorts; the supplemental visas are intended for employers who are likely to suffer irreparable harm without these additional workers.

DHS first announced the increase for the H-2B Temporary Non-Agricultural Worker program on April 20 and it was published in the Federal Register on May 25.

The supplemental visa allocation comprises 16,000 visas available only to returning H-2B workers from one of the last three fiscal years (2018, 2019 or 2020). The remaining 6,000 are reserved for nationals of the Northern Triangle countries of Honduras, El Salvador and Guatemala, regardless of whether such nationals are returning workers.

“The temporary final rule is designed to prevent permanent and severe financial loss to US employers by supplementing the congressionally mandated H-2B visa cap,” said Tracy L. Renaud, acting director for the US Citizenship and Immigration Services.  “[The rule] takes into account feedback from American businesses, employer organizations, and labor representatives, and is one piece of the administration’s broader comprehensive framework for managing migration throughout North and Central America.”

The rule requires that employers take additional steps to recruit US workers, and provides for “portability,” which allows H-2B workers already in the US to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved.

“Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions,” Renaud said. “DHS and the Department of Labor will also conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Starting May 25, eligible employers who have already completed a test of the US labor market to verify that there are no US workers who are willing, qualified and able to perform the seasonal nonagricultural work can file Form I-129, Petition for a Nonimmigrant Worker to seek additional H-2B workers. They must submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce. Additional details on eligibility and filing requirements are available in the temporary final rule and the Temporary Increase in H-2B Nonimmigrant Visas for FY 2021 webpage.