Release the Visas - DHS and DOL to Release Additional 35,000 H2B Visas
On March 31, 2022, the United States Department of Homeland Security announced that an additional 35,000 H2B visas will be released for the April 1, 2022 H2B Cycle. While no formal rule has been published, some guidelines were disclosed and you can read the announcement here. This Post will also go over a few of these details as well as expectations of the Cap Relief visas based on previous relief granted by DHS.
What We Know
The Visas are for Employers with start dates between April 1, 2022. and September 30, 2022;
These Employers must hold a DOL Temporary Labor Certification;
23, 500 H2B Beneficiaries may come from any “Eligible Country” if the beneficiary has held H2B status during at least one of the previous three fiscal years;
11,500 H2B Beneficiaries may come from Haiti, Honduras, El Salvador, and/or Guatemala, and these beneficiaries are not required to have previously held H2B status.
What We Expect
The 11,500 Cap Relief H2B Visas reserved for the aforementioned countries will be made available for beneficiaries (having recent H2B status) from any Eligible Country following a predetermined period if these visas are not fully allocated;
There will be a requirement that additional local recruitment be conducted;
There will be additional documentation that must be filed with an I-129 (check this out for reference);
Audits. These won’t be the lengthy FLSA and H2B Audits, but they will be briefer audits that examine whether you can provide the proper documentation to demonstrate that the absence of H2B Beneficiaries will result in “irreparable harm” (so be careful if what you attest to in the additional documentation if you are required to submit it).
What We Don’t Know
WE HAVE NO IDEA WHEN THE VISAS WILL BE RELEASED.
This is not a joke. It is reality. A Temporary Final Rule will be published. However, it seems that nobody truly knows when this will be. And until this is published, no visas will be released. Following the announcement, the rumor was that the visas would be released the following week. The following week, the rumor was that the visas would be released by the end of the week, or possibly the next week. Neither happened. Now that we are in a new week, the Seasonal Employment Alliance has speculated that the visas will not be released until at least next week.
Sadly this is an all too familiar feeling as it mirrors last year. For the April 1, 2021 Cycle, DHS and DOL announced that 22,000 Cap Relief Visas would be made available, and made this announcement on April 20. The Temporary Final Rule was not published until May 25, 2021.
While rumor has it that the Cap Relief H2B Visas will be released earlier than last year, it would not be surprising at all if the visas are not released prior to May 1st. Again, this is purely speculation and I hope I am wrong. I hope the Cap Relief H2B Visas are released today, but at Williams Law, we try our best to give H2B Employers the most realistic picture of the H2B program and all its great features as well as its crippling flaws.
For more commentary and more up-to-date information, you can follow on Twitter: @H2BLawyer
