The DHS and the DOL have published a temporary final rule jointly. It makes an additional 22,000 H-2B temporary non-agricultural visas for guest workers available for FY 2021. This is aimed to benefit employers who will possibly suffer great harm if these additional workers aren’t available to them.
6,000 of the visas are supplemental in nature. They are set aside for nationals of El Salvador, Honduras, and Guatemala, which are known as Northern Triangle countries.
The first announcement in this effect was made by the DHS on April 20, 2021. The supplemental H-2B visa includes 16,000 visas that are available only to H-2B workers returning in one of the last 3 fiscal years (FY 2018, 2019, or 2020). Also involved are 6,000 visas for nationals of the Northern Triangle nations. They are exempt from the requirement of being a returning worker.
It’s for the first time that the USA is reserving supplemental visas for non-US citizens originating from Northern Triangle countries.
About the temporary final rule
The temporary final rule is designed with the intention to prevent severe and permanent financial loss to US employers. This is done by supplementing the H-2B visa cap which is congressionally mandated. It takes into account feedback from employer organizations, American businesses, and labor representatives.
It’s a component of the administration’s broader comprehensive framework. The framework serves the purpose of managing migration all over North and Central America. This was stated by Tracy L. Renaud, the Acting Director of USCIS USA.
This rule has many key provisions that ensure sufficient safeguards for H-2B workers and US workers. As per the rule, employers must take additional steps to recruit US workers. They must also provide for “portability”. That will allow H-2B workers currently in the USA to start working with a new H-2B agent or employer. This is possible after the USCIS gets a non-frivolous H-2B petition filed on time. However, it must be done before the approval of the petition.
Portability renders H-2B workers able to change employers faster in case they face abusive or unsafe working conditions. DOL and DHS will also conduct many post-adjudication reviews. This will be done to make sure that there’s compliance with the requirements of the program.
From May 25, 2021, eligible employers can file Form I-129. This is the petition for a non-immigrant worker, to find additional H-2B workers. These employers must have completed a test conducted by the US labor market to verify that no willing, qualified, and able workers from the USA were found to engage in the seasonal non-agricultural work.
Along with their petition, they have to submit an attestation to show that their business is prone to suffer irreparable damage if there’s no supplemental workforce.
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DHS – Department of Homeland Security
DOL – Department of Labor
FY – Financial Year