A new rule is set to be published in the Federal Register on May 8, 2019 announcing the authorization for an additional 30,000 visas to individuals who have already had an H-2B visa (returning workers) within the most recent three (3) fiscal years. The additional 30,000 visas are in addition to the 66,000 visas that have been issued for this fiscal year. The additional visas are only for this fiscal year 2018, and will therefore just be permitted for the remainder of the 2018 fiscal year, until September 16, 2019 or until the cap is reached.
After May 8, 2019, employers may petition for returning workers to get new H-2B visas by filing the Form I-129, Petition for a Nonimmigrant Worker along with the Temporary Labor Certification. The employer will need to certify that their business will suffer “irreparable harm” if unable to hire the H-2B workers and that the workers have had an H-2B visa in at least one of the last three (3) fiscal years.
The advance copy of the temporary rule which the Department of Homeland Security will publish in the Federal Register on May 8, 2019 provides that employers must meet the following requirements:
- The employer must have a valid unexpired temporary labor certification which cannot expire on a date earlier than the date on the employer’s visa petition.
- While individuals with another non-immigrant status cannot apply for a change of status, the petition can be approved for consular processing for issuance of H-2B visas.
- The employer must complete the ETA 9142-B-CAA-3, Attestation for Employers Seeking to Employ H-2B Nonimmigrants Workers on which the employer must attest that “it will likely suffer irreparable harm, defined as permanent and severe financial loss.” In the attestation, the employer will also certify that the workers being petitioned for have been issued H-2B visas or status during the last three (3) fiscal years which are FY 2016, 2017 and 2018. While the required forms and attestation is enough in regards to documentation, it is important to retain any supporting documentation showing “irreparable harm” and previous status compliance of the returning worker in case of an audit. The documents should be kept for 3 years. Such documentation of potential “irreparable harm” and employer compliance with the returning worker provision in the rule may include but is not limited to:
- Financial statements;
- Bank statements;
- Tax records;
- Employment records;
- Evidence showing number of workers needed in the past and the present; or
- Evidence showing number of H-2B workers in past seasons, requested, employed, offered hours, and worked hours.
- Communications with agents or recruiters instructing to obtain only returning workers; and
- Documentation confirming that employer verified returning worker’s previous H-2B status.
The Temporary Labor Certification (TLC)
Employers who submit a petition for the non-immigrant “returning worker” 45 or more days after the certified start date on the TLC, must also conduct new recruitment for U.S. workers. This requires the employer to:
- Place a new job order with the State Workforce Agency (SWA) serving the area of intended employment and post at the place of employment for at least 5 days beginning not later than the next business day after submitting the petition with the required attestation;
- Place one print or online newspaper advertisement, which may be published on any day of the week, which meet the advertising requirements; and
- Offer the job to any qualified and available U.S. worker who applies or is referred for the job opportunity until two business days after the last date on which the job order is posted.
NOTE: As always this is for informational purposes only and is not legal advice. Consult an immigration attorney, like myself, for advice regarding your particular circumstances.