DHS, DOL Issue Joint Rule Increasing H-2B Visa Cap | Joseph & Hall P.C.

Contributed by Kirby Joseph, Alliance of Enterprise Immigration Attorneys

The Departments of Homeland Safety (DHS) and Labor (DOL) revealed a joint momentary ultimate rule making obtainable a further 22,000 H-2B momentary nonagricultural visitor employee visas for fiscal yr (FY) 2021 “to employers who’re prone to endure irreparable hurt with out these further staff.” Of the supplemental visas, 6,000 are reserved for staff from Honduras, El Salvador, and Guatemala (Northern Triangle).

The supplemental H-2B visa allocation consists of 16,000 visas obtainable solely to returning H-2B staff from one of many final three fiscal years (FY 2018, 2019, or 2020), and 6,000 visas for Northern Triangle nationals, that are exempt from the returning employee requirement.

USCIS Performing Director Tracy L. Renaud mentioned that the rule “requires that employers take further steps to recruit U.S. staff, and offers for ‘portability,’ which permits H-2B staff already in the USA to start employment with a brand new H-2B employer or agent as soon as USCIS receives a well timed filed, non-frivolous H-2B petition, however earlier than the petition is authorized.” She famous that portability permits H-2B staff to “change employers extra shortly in the event that they encounter unsafe or abusive working situations.” She mentioned DHS and DOL “will conduct a major variety of post-adjudication critiques to make sure compliance with this system’s necessities.”

Beginning Might 25, 2021, eligible employers who’ve already accomplished a check of the U.S. labor market to confirm that there are not any U.S. staff who’re keen, certified, and in a position to carry out the seasonal nonagricultural work can file Kind I-129, Petition for a Nonimmigrant Employee, to hunt further H-2B staff. They need to submit an attestation with their petition to display that their enterprise is prone to endure irreparable hurt and not using a supplemental workforce.

Lawsuit Difficult Rule Prioritizing H-1B Visas Based mostly on Wage Ranges

Jeff Joseph and Joseph & Corridor, together with a number of nonprofit organizations and colleagues, filed a federal lawsuit difficult a rule that might prioritize H-1B visas based mostly on wage ranges. Amongst different issues, the plaintiffs argue that the rule would “have a deleterious affect on small enterprise, start-ups, non-profits, rurally situated enterprise and different industries that depend on international extremely expert staff, however who usually are not in a position to compensate staff on the highest wage stage.”