The H-2B visa is a temporary non-agricultural worker program which allows employers to hire foreign workers to perform temporary, nonagricultural labor or services in the US where there are no qualified U.S workers that able and willing to take the job. H-2B workers are most often employed as landscapers/groundskeepers, housekeepers, athletes, construction laborers, and restaurant workers.
The number of H2B visas available to foreign workers each year is set to 66,000, to be distributed semi-annually beginning in October and April. That means that 33,000 visas are available for the first half of each fiscal year (October to April) and another 33,000 for the second half which runs from April to October.
On May 25, 2021, the Secretary of Homeland Security, in consultation with the Secretary of Labor, exercised his time-limited (only for FY2021) authority and increased the number of H–2B nonimmigrant visas available for issuance with another 22,000 through the end of the second half of FY 2021. The new visas are available only for workers whose employers have attested that they are likely to suffer irreparable harm.
The 22,000 visas are divided into two. 16,000 H2B visas are available only to returning workers which are the workers who were issued H2B visas during any of the fiscal years 2018, 2019, or 2020.
The remaining 6,000 visas are initially reserved for nationals of Guatemala, Honduras and El Salvador which are the so-called Northern Triangle countries. If these visas are not used by July 8, 2021, the 6,000 additional visas will be made available to employers regardless of the beneficiary’s country of nationality, subject to the returning worker limitation.
The increase in visa numbers is based on a law, signed on December 27, 2020, by then-President Donald Trump. That law contains a provision permitting the Secretary of Homeland Security, under certain circumstances and after consultation with the Secretary of Labor, to increase the number of H–2B visas available.
Specifically, that particular section of the law (section 105) provides that the number of H2B visas may be increased but that increase cannot be more than the highest number of H–2B nonimmigrants who participated in the H–2B returning worker program in any fiscal year in which returning workers were exempt from the H–2B numerical limitation.
The decision to increase the number of H2B visas available to foreign workers is not uncommon and the U.S. Secretary of Homeland Security has done it for fiscal years 2017, 2018 and 2019. For fiscal years 2017 and 2018 the increase was by 15,000 additional H2B visas for those businesses that attested that if they did not receive all of the workers requested, they were likely to suffer irreparable harm. The increases were announced on July 19, 2017, and May 31, 2019, for FY2017 and FY2018 respectively. Fiscal year 2018 saw the biggest increase in available H2B visas with 30,000 more visas available. The decision was announced on May 8, 2019.
Although the U.S. Congress gave the Secretary of Homeland Security the discretionary authority to increase the number of H2B visas in FY 2020, the authority was not exercised. Initially the U.S. Department of Homeland Security had announced an increase by 35,000 additional H2B visas but due to COVID-19 regular visa processing at U.S. consulates around the world was stopped.
Because number of H2B visas is insufficient to fill positions for which no qualified U.S. workers are available the U.S. government is forced increase the number of available H2B each year. With the post-pandemic economic recovery under way, many U.S. workers have quit their positions and left some industries altogether in search of better pay. That leaves labor intensive industries struggling to find sufficient number of workers, a problem that existed before the pandemic but is further compounded by current conditions. That makes it very likely there will be an increase in the number of H2B for FY 2022 which starts on October 1, 2021.
If you or your business is interested in the H-2B visa program to bring in temporary foreign workers, contact us, your trusted business and immigration law firm in Miami, Florida USA to learn more about the H-2B visa requirements or schedule an appointment.
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