On May 8, 2019, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published a final temporary rule that authorizes an increase to the cap on H-2B nonimmigrant visas for federal fiscal year (FFY) 2019. Specifically, the rule allows for up to 30,000 additional visas beyond the cap that they previously set for this classification of visa through the end of FFY 2019, or September 30, 2019.
To take advantage of these additional visas, American business owners must affirm that they are likely to suffer irreparable harm, or permanent and severe financial losses, if they do not receive the number of H-2B visas that they requested. U.S. Citizenship and Immigration Services (USCIS) will grant these visas only for returning workers, or those who had H-2B visas in at least one of the last three fiscal years (2016, 2017, or 2018. The increased number of H-2B visas available does not apply to petitions not subject to the H-2B visa cap, such as those filed relative to a H-2B extension of stay request.
To be eligible for these visas, employers must meet the following criteria:
- Employment start dates for the requested visas must be on or before September 30, 2019.
- Comply with all existing H-2B visa requirements, including obtaining a temporary labor certification from DOL that is valid for the entire employment period
- If filed 45 days or more after the work start date, conduct a new round of U.S. worker recruitment
- Affirm under perjury that irreparable harm will occur if the employer is not granted all the requested visas and that all visas requested are for returning workers
Employers can continue to request premium processing at an additional cost, but USCIS will not begin the premium processing procedures until it determines from the petitions received in the first five business days of the filing period whether a lottery is needed and conducts that lottery. If approved by USCIS, the worker then would have to obtain the H-2B visa abroad at a local consular post before seeking entry to the U.S. at a port of entry.
No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.