The Department of Homeland Security (DHS) and the Department of Labor (DOL) announced as of May 16, 2022, that an interim rule has been finalized that will provide an additional 35,000 H. 2B visas to help small businesses fill seasonal vacancies for the upcoming season. These visas will supplement the 33,000 H-2B visas available in the second half of the current fiscal year, all of which have already been requested.
These visas are available to U.S. employers looking to hire workers beginning April 1, 2022, through September 30, 2022.
Senators’ Support for Maine Tourism Businesses
Maine businesses have been supported in applying for these visas since Wednesday, May 18, 2022. These visas will be reserved for U.S. employers seeking to hire additional workers through September 30, 2022. Senators Collins and King announced in March that the Department of Homeland Security and DOL planned to issue these visas.
“Tourism in Maine is a vital part of our state’s economy, supporting the jobs of tens of thousands of Mainers. To meet the needs of the millions of visitors to Maine each year, Maine businesses need H-2B workers to replenish their Maine workforce.
Without their help, many of these hotels and restaurants would not be able to open or would have to scale back their operations, hurting the local community and the Maine workers employed by these businesses,” Senators Collins and King said in a joint statement.
“While these additional visas will help provide relief to many small Maine businesses during the busy summer months, there is still significant demand given the current job market and record unemployment. We need to improve the H-2B program, to ensure that Maine small businesses do not continue to suffer from labor shortages.
What Groups of Workers are Eligible for these Visas?
The supplemental visas are divided into the following two allocations:
- 23,500 visas are limited to returning workers, regardless of nationality, i.e., workers who hold an H2B visa or who had an H2B visa in FY 2019, FY 2020, and FY 2021.
- 11,500 visas reserved for nationals of El Salvador, Guatemala, Honduras, and Haiti.
What are the Requirements to Qualify for the Supplemental Cap in FY 2022?
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To qualify for the supplemental caps in FY 2022, eligible petitioners must:
1.) Meet all existing H2B eligibility requirements (including obtaining a Temporary Labor Certification (TLC) from DOL ;
2.) Properly file an I-129 petition by September 15, 2022, requiring a start date of April 1, 2022 or later through September 30, 2022.
3.) File a statement alleging that the employer is or will be irreparably harmed by not being able to hire all of the H-2B workers requested in the petition, and is seeking to hire returning workers only unless the H-2B workers are nationals of El Salvador, Guatemala, Honduras, or Haiti and count toward the 11,500 cap exempted from the returning worker requirement ;
4.) Agree to comply with all applicable labor and employment laws, including health and safety laws related to COVID-19, and the right to vacation or paid time off to receive COVID-19 vaccine, or reimbursement of transportation costs to and from the available or nearest vaccination site, inform workers, if necessary, in a language they understand, of equal access to COVID-19 vaccine and vaccine distribution locations for nonimmigrants.
Applications will be processed in the order in which they are received. Although the benefits provided in this rule have not been met, USCIS will stop accepting applications received after September 15, 2022.
Employer Obligations and Duties
The H-2B program allows employers to temporarily hire non-citizens to perform non-agricultural work or services in the United States. The employment must be for a limited time, such as a one-time event or seasonal or intermittent need.
Employers seeking to hire H-2B workers should take a number of steps to test the U.S. labor market. They must provide evidence to the DOL that there are not enough capable, willing, qualified, and available U.S. workers to perform the temporary jobs for which they are seeking potential foreign H-2B workers and that there will be no adverse impact on the wages and working conditions of U.S. workers in similar jobs.
As part of the supplemental cap request process, DHS will conduct additional review of employers who violate certain labor laws under the H-2B program. This additional review is designed to ensure compliance with the requirements and obligations of the H-2B program.
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