Supplement to H-2B Cap – The Only Guide You Need

By Richard Herman

The H2B visas have been the preferred option for employers and businesses across the United States. It is vital for those who require sufficient labor force to run their businesses through a specific period temporarily.

Unlike the H-1B, the H2B visas require an unskilled workforce who do not possess university degrees or diplomas to apply. The H2B visa holders are allowed a stay of one year with an option for further renewal for just two additional years and a compulsory three-month stay outside the country after the elapsed three years before readmission. It is also an avenue for business owners to employ additional workers.

In 2021, one of the first supplements to the H-2B visa cap was implemented by a joint temporary final rule between the Department of Homeland Security and the Department of Labor. The United States set aside supplemental visas for citizens in the northern triangle countries for the first time in a fiscal year, and DHS intends to implement policies similar to the H-2B program in the coming years.

Proposed Rulemaking and the Presidential Directions on Supplemental H-2B

The joint temporary final rule alongside the provision of supplement H-2B cap clearly expresses President Biden’s direction, in a press release, to expand legal pathway for the protection and employment for individuals from these countries. That way the process of filing requirements becomes easy for a returning worker and their employers while ensuring no room is created for suffering irreparable harm.

Information from the last three fiscal years resulted in the proposed rulemaking and by a separate notice, the idea of creating additional visas in the first half of the fiscal year was birthed. The goal was to ensure that the country can temporarily hire noncitizens through the 20,000 H-2B temporary additional visas provided in the first half of a fiscal year. Several sensitive information were considered and analyzed to ensure anything that can adversely affect or cause impending irreparable harm is taken away through the H-2B program and the cap increase.

Are H-2B Visas Still Available?

The H-2B visas are still available for employers who seek to bring foreign nationals to the United States to fill the temporary void in the workforce. However, these visas are only available to employers and employees who meet the criteria specified by the department of labor, the USCIS, and homeland security.

First of all, to qualify for an H-2B visa, you must be an employee from certain countries specified by the USCIS. These countries are subject to change, and are published in the federal registry every year. Non-immigrants considered as temporary hires are granted the H-2B visa.

What Are Conditions to be Eligible for Supplement to H2B Cap?

For employers, certain specific conditions have to be met to make them eligible for petition of H-2B employees. The main focus for eligibility is their need. It can be a seasonal, peak load, or a one-time occurrence. However, it should be temporary for a period, and the employers cannot be involved in agriculture or any services related to that sector. Besides these major specifications for employees and employers, there are no educational requirements for obtaining an H-2B visa.

However, for employers seeking workers to be eligible for the additional supplement to an H-2B cap, they must prove that their businesses are likely to experience permanent or significant financial loss if they cannot employ the amount of H-2B workers stated in their petition or request forms for that fiscal year. In addition, employers can only apply for workers who have already been issued an H2B visa or granted status in the previous three years.

The only exempt from this rule are workers petitioned under the northern triangle allotment based on their participation as northern triangle countries.

Department of Homeland Security to Supplement H-2B Cap With Additional Visas in First Half of Fiscal Year

The Department of Homeland security and the Department of Labor is responsible for the forthcoming publication of the law that makes available an additional 20,000 temporary non-agricultural visas for employers seeking it in the 2022 fiscal year. These visas are set to provide US employers with additional workers before March 31 this year.

This supplement was provided for the first time last year with specific conditions on availability through federal government websites. The standard fiscal year H-2B cap was agreed on February 12, 2021, to add supplemental numbers, which provide opportunities for qualified H-2B employers.

This fiscal year, as with prior supplements, employers will need to attest that their business is at risk of permanent harm without these additional workers. Another condition is to hire workers who only already possess H-2B status without waiting for new approval.

How Can Employers Test the US Labor market?

To provide convincing grounds for business risk or harm, employers must test the US labor market and certify in their written petitions that there are insufficient US workers qualified, willing, able, or available for their working positions. The presence of a national association can also be an added advantage for non-citizen workers. They must also guarantee that employing foreign workers on H-2B visas would not negatively affect similarly employed US workers’ wages or working conditions. You must know that written petitions must be timely filed providing additional details to the appropriate authority.

The supplemental H-2B visa comprises 13,500 visas, which are available to returning workers with an H-2B visa. The leftover 6000 plus visas are exempt from returning worker requirements. This is because they are reserved for nationals of Haiti and participating countries of the northern triangle allotment consisting of El Salvador, Honduras, and Guatemala.

Unprecedented Supplement to H-2B Visa Cap

Clearly, the scale at which the present supplement to the H-2B visa cap is unprecedented. Many factors have contributed to the growing increase in the increment of H-2B visas for US employers.

We could go as far back as the H-1B cap blackouts that left employers with limited visa work options for skilled workers or the positions needing college degrees. Also, the loss of essential workers in the labor force due to new work-site enforcement and the increasing labor needs of employers in different states can be touted as additional reasons for this unprecedented supplement.

Furthermore, America seems to be in a generational crisis where young people are not interested in taking summer jobs or extracurricular activities to become more self-sustainable. Most families encourage this as they would rather work for more disposable income to finance their children’s activities.

Still, there are several advantages in this unprecedented addition to the H-2B visa cap, like the expansion of small businesses and the survival of those companies that lack the labor force for optimal operation. The H-2B visa numbers have consistently been exhausted in the past five years before the end of the fiscal year, thus showing that this unprecedented supplement was bound to come in the long run.

The DHS and Labor Joint Temporary Final Rule on Supplementing H-2B Visa Cap

The temporary final rule, which pertains to the H-2B visa cap, is responsible for the unprecedented supplement to the H2B visas. The Department of Labour (DOL) and the Department of Homeland Security (DHS) enforced this joint rule to allow an additional 20,000 temporary non-agricultural worker visas for the fiscal year.

The rule is specifically designed to aid employers who are likely to suffer permanently without additional labor assistance. The Department of Labour and the Department of Homeland Security created the joint rule by taking account of feedback from various American businesses, liberal representatives, and employer organizations which broadened the compressive framework for managing work visa migration throughout the United States.

The director of the United States Citizenship and Immigration Services (USCIS) explained that the rule demands additional employers to recruit US workers while offering flexibility. This flexibility allows the H-2B workers already in the United States to switch to a new employer as long as the USCIS receives a filled H-2B petition before the switch, which must be sanctioned. The citizenship and immigration services play a role in determining what such sanction will be once you begin employment.

What Does the Joint Temporary Final Rule Allow and How Does It Record Job Growth?

The joint rule, like every proposed rule, allows H-2B noncitizen workers to easily change employers if they experience hazardous or abusive working environments and conditions. The DHS and the DOL also use the joint rule to carry out several post-adjudication supervision to ensure compliance with the program’s regulations when individuals begin employment. The rule is always more useful in the first half of fiscal year in terms of management and provision of visas.

The rule gives a prospective foreign worker an opportunity to be a part of the nation’s historic economic recovery through the provision of an additional 20,000 H-2B supplemental cap across different fiscal years. A huge application for these additional visas is always recorded in the first half of fiscal year, and to meet these demands H-2B cap with additional visas is provided.

Will this joint rule be subject to change? Or will there be additional qualification requirements to employ this rule? That remains to be seen, but what can be right now is that this rule provides a lot more for struggling US employers or companies than previous ones did. With it, the supplement to the H-2B cap functions effectively for the growth of the US economy.

What Can We Do to Help You?

Richard Herman specializes in immigration matters and has been doing so for over 22 years. With the quality of services we offer, we have helped many people willing to come into the United States benefit get the visas they need to settle down here.

You can schedule an online consultation with us via ZOOM, WhatsApp, or Skype. If it is more convenient for your schedule, you can call us on at +1-216-696-6170 and there will be someone to attend to you. Alternatively, you can request a consultation via our online form to discuss how you can get the visas for you and your loved ones.

Conclusion

The H-2B cap may be here to stay as the demand for temporary non-immigrant workers is still on the rise, especially in the first half of every year. But with the joint final rule in place, many employers and employees alike have a lot to benefit from. It becomes easy for the appropriate authorities to perform nonagricultural labor, protect American businesses, and incorporate program efficiencies when they expand lawful pathways. While everyone believes there is still a forthcoming publication on the temporary rule and what to expect from the second half, the supplemental cap marks is a step in the right direction.

Related Post About H-2B Visa: