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Joint H-2B Visa Restriction Rule

The Department of Homeland Security (DHS) and the Department of Labor (DOL) have published a joint interim final rule. Under this rule, employers can obtain additional temporary H-2B visas that are not related to agriculture. Of the additional visas, 6,000 are reserved for citizens of the Northern Triangle countries: Honduras, El Salvador, and Guatemala.

What does this rule say?

DHS first announced a planned 22,000 additional visa increase for the H-2B program on April 20, 2021. The H-2B supplementary visa provides for the issuance of 16,000 visas available only to returning H-2B workers in the last three fiscal years (2018, 2019 or 2020 financial year). In addition, 6,000 visas for citizens of the Northern Triangle are exempted from the worker’s return requirement.

H-2B Visa Restriction Rule

“Today’s joint rule helps American businesses and addresses the need for robust worker protections,” said Secretary of Homeland Security Alejandro N. Mayorkas. “For the first time, we are setting aside supplemental visas for noncitizens from Northern Triangle countries, in furtherance of President Biden’s and Vice President Harris’ direction to expand legal pathways for protection and opportunity for individuals from those countries.”

“The temporary final rule is designed to prevent permanent and severe financial loss to U.S. employers by supplementing the congressionally mandated H-2B visa cap, takes into account feedback from American businesses, employer organizations, and labor representatives, and is one piece of the administration’s broader comprehensive framework for managing migration throughout North and Central America,” said USCIS Acting Director Tracy L. Renaud. 

“This rule incorporates several key provisions to ensure adequate safeguards for U.S. workers and H-2B workers. The rule requires that employers take additional steps to recruit U.S. workers, and provides for “portability,” which allows H-2B workers already in the United States to begin employment with a new H-2B employer or agent once USCIS receives a timely filed, non-frivolous H-2B petition, but before the petition is approved. Portability enables H-2B workers to change employers more quickly if they encounter unsafe or abusive working conditions. DHS and DOL will also conduct a significant number of post-adjudication reviews to ensure compliance with the program’s requirements.”

Form I-129

Beginning May 25, eligible employers who have already passed the US labor market test to ensure that there are no workers in the US willing, qualified, and able to do seasonal non-agricultural work can file Form I-129, a petition for nonimmigrants. Employers must provide proof of their application to demonstrate that irreparable harm could be caused to their business without additional labor. More information on eligibility and filing requirements is available in the Interim Final Rule and the FY2021 H-2B Nonimmigrant Visa Temporary Increase website.