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H-2B Cap Raise FAQs

U.S. Department of Labor

Employment and Training Administration

OFFICE OF FOREIGN LABOR CERTIFICATION

H-2B Program Frequently Asked Questions

March 9, 2020

The U.S. Department of Homeland Security (DHS) recently announced1 that it intends to make available 35,000 supplemental H-2B temporary non-agricultural worker visas for the second half of fiscal year (FY) 2020, and that of these 35,000 visas, 20,000 would be made available for employment start dates beginning April 1, 2020, and 15,000 would be made available for employment start dates beginning May 15, 2020. Additionally, DHS indicated it intends for these visas to be available to returning workers from one of the three previous fiscal years, with the exception of 10,000 visas, which would be available for nationals of Guatemala, Honduras, and El Salvador. The following general information concerning the

U.S. Department of Labor’s (Department) procedures is provided with that announcement in mind.

 

1. I am an employer who would like to file a petition under this supplemental allocation, but I have not previously submitted an H-2B application. Based on the Department’s regulatory timeframes, I cannot obtain a valid prevailing wage determination (PWD) and H-2B certification in a timely manner in order to file a petition under this supplemental allocation. Can I file an emergency H-2B application with DOL?

 

Yes. In the event DHS publishes a Temporary Final Rule to accept more petitions for employment start dates during the second half of FY 2020, as outlined in their announcement from March 5, 2020,2 OFLC recognizes that some employers who have not previously requested a temporary labor certification and seek to hire H-2B workers to begin employment from May 15, 2020, through June 30, 2020, may have insufficient time to obtain valid PWDs and prepare all required documentation in order to file completed Applications for Temporary Employment Certification within the regulatory filing timeframe under 20 CFR 655.15.

As such, these employers may also be unlikely to have sufficient time to obtain valid temporary labor certifications in order to file petitions with DHS and receive timely approval to hire H-2B workers to begin work during this timeframe. Therefore, OFLC would consider this specific situation to qualify as good and substantial cause under 20 CFR 655.17. If these employers are unable to meet the regulatory filing timeframe under 20 CFR 655.15, they should request a waiver of the regulatory filing timeframe as provided below.

An employer who chooses to request a waiver of the regulatory filing timeframe must submit a statement describing the good and substantial cause necessitating the waiver request, a completed Application for Temporary Employment Certification, a proposed job order identifying the State Workforce Agency serving the area of intended employment, and all applicable documentation meeting the requirements of 20 CFR 655.15. See 20 CFR

 

 

1 See https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers

2 See https://www.dhs.gov/news/2020/03/05/dhs-improve-integrity-visa-program-foreign-workers

2

655.17(b). An employer should state that they have a temporary need for H-2B workers, identify the anticipated start date of employment, provide a statement that they have not already filed an Application for Temporary Employment Certification on or after January 2, 2020, and are thereby seeking to utilize the emergency filing procedures. If the employer did not previously apply for a PWD, the employer should concurrently submit a completed Application for a Prevailing Wage Determination (Form ETA-9141) requesting a PWD for

the job opportunity. See 20 CFR 655.17(b).