Federal Agencies Jointly Issue Worker H-2B Visa Rule

The Departments of Labor (DOL) and Homeland Security (DHS) published a joint temporary final worker H-2B Visa rule. Released on May 21st, 2021, overall, the Rule makes an additional 22,000 H-2B temporary nonagricultural guest worker Visas available. The Visas will be available only during fiscal year 2021 to employers who would suffer irreparable harm without other workers. Comparatively, of the additional Visas, 6,000 are for Honduras, El Salvador, and Guatemala nationals. Previously, the DOL announced a delay to the Prevailing Wage Rule for 18 months. In particular, that Rule focused on calculating the prevailing wages of certain Visa-carrying immigrants and non-immigrant workers.

Overview of the Worker H-2B Visa Rule

Earlier, the DHS announced the increase of 22,000 Visas for the H-2B Temporary Non-Agricultural Worker program on April 20th, 2021. The supplemental H-2B Visa allocation specifically consists of 16,000 Visas available only to returning H-2B workers. However, the returning workers must be from one of the last three fiscal years (FY 2018, 2019, or 2020). As mentioned before, Northern Triangle nationals (Honduras, El Salvador, and Guatemala) will account for 6,000 Visas. Those 6,000 Visas, though, are exempt from the returning worker requirement. Generally, the two agencies designed the worker H-2B Visa rule to prevent financial loss to U.S. employers. Firstly, the Rule supplements the congressionally mandated H-2B cap by adding the 22,000 additional Visas. The DOL and DHS acted after receiving feedback from American businesses, employer organizations, and labor representatives. Secondly, the final Rule falls into the Biden administration’s framework for managing migration throughout North and Central America. Given these points, starting May 25, eligible employers can begin following the Final Rule.

Employer Takeaways

In conclusion, when an employer verifies that U.S. workers are unavailable to work, they can seek H-2B workers. Accordingly, the employer must first file Form I-129, Petition for a Nonimmigrant Worker. Also, the employer must include an attestation. The declaration must explicitly show that the business is suffering irreparable harm without a supplemental workforce. Furthermore, additional details on eligibility and filing requirements are available on the worker H-2B Visa rule webpage.