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Business Immigration Zone (BIZ): H-2B Visa Program Updates

June 11, 2018

The Secretary of Homeland Security and the Department of Labor have increased the H-2B cap for the 2018 fiscal year by up to 15,000 additional visas through a jointly issued temporary rule. This rule is titled “Exercise of Time-Limited Authority to Increase the Fiscal Year 2018 Numerical Limitation for the H-2B Temporary Nonagricultural Worker Program” and is effective as of May 31, 2018. An American employer wanting to take advantage of these additional visas must attest its business is likely to suffer irreparable harm if it cannot employ all the H-2B workers it requested on its Form 1-129 petition. For the purposes of this rule, irreparable harm is defined as permanent and severe financial loss.

Interested employers must attest they will suffer irreparable harm by submitting Form ETA-9142-B-CAA-2, along with Form I-129, in support of an H-2B application to the United States Citizenship and Immigration Services. Form ETA-9142-B-CAA-2 is found here.

The employer must place a new job order with the State Workforce Agency. The employer can either “re-open” the initial job order or create a new job order. Regardless, the job must be posted with a current start date for prospective U.S. applicants to understand that the employer is currently hiring.

This job order must contain the job assurances and contents set forth in 20 CFR 655.18 and remain posted for at least five calendar days, beginning no later than the next business day after submitting the request. The employer must also place at least one newspaper advertisement that meets the advertising requirements of 20 CFR 655.41 during the time the State Workforce Agency is actively circulating the job order. Compliance with these minimum standards for recruiting U.S. workers is the responsibility of the employer.

Contact Brandon Davis for assistance determining options under this temporary rule.