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Consistent with Fiscal Year (“FY”) 2017, the Secretaries of Labor and Homeland Security have announced that up to an additional 15,000 H-2B visas are available for FY 2018 on a first-come, first-served basis for those businesses that attest, under penalty of perjury, that they are likely to suffer irreparable harm, i.e., suffer a permanent and severe financial loss, if they do not receive all of the workers under the cap increase.

The determination to increase the numerical limitation is based on the conclusion that some businesses risk closing their doors in the absence of a cap increase. “The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses it needs to be reformed,” said Secretary of Homeland Security Kirstjen M. Nielsen. “I call on Congress to pass much needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting U.S. workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

The increase in the FY 2018 numerical limitation on H-2B visas by up to 15,000 is intended to ensure a sufficient number of visas to meet the level of demand in past years, but also restrict the availability of such visas by prioritizing only the most significant business needs. By way of background, 18,090 workers were approved for H-2B petitions under the most recent returning worker statute in FY 2016 but only 13,382 were admitted or otherwise acquired H-2B classification, and 12,294 workers were approved for H-2B classification out of a maximum of 15,000 supplemental H-2B visas for FY 2017.

Supporting evidence of the likelihood of a business suffering irreparable harm without the requested H-2B workers is not required at the time of filing the H-2B petition with the U.S. Citizenship and Immigration Services, other than an attestation on Form ETA-9142-B-CAA-2, but the business must retain such evidence for three (3) years and present the same if requested to do so, such as in the event of an audit or investigation. Such evidence may include, but is not limited to, evidence that the business is or would be unable to meet financial or contractual obligations without H-2B workers, evidence that the business has suffered or will suffer permanent and severe financial loss during the period of need, evidence showing the number of workers needed in previous seasons to meet the employer’s temporary need as compared to those currently employed, and evidence that the business is dependent on H-2B workers.

If the employer’s start date of need in its approved temporary labor certification is before April 15, 2018, the employer will be required to conduct additional recruitment for U.S. workers consisting of placement of a new job order for at least five (5) days, placement of one (1) newspaper advertisement online or in print on any day in which the job order is run, and preparation of a new recruitment report. The additional recruitment does not need to be finalized before submitting the H-2B petition, but the job order must be posted no later than the next business day after submitting the H-2B petition. Employers are required to hire any qualified U.S. worker applicant until two (2) business days after the last date on which the job order is posted.

As is the case generally with the H-2B program, the Departments of Labor and Homeland Security have the authority to verify any information submitted to establish H-2B eligibility and conduct audit examinations. Where an investigation determines that there has been a willful misrepresentation of a material fact, a substantial failure to meet the required terms and conditions of the attestations, or a failure to comply with the audit examination process, the DOL may institute administrative proceedings to impose sanctions and remedies, including, but not limited to: revocation or termination of approval; assisted recruitment for future filings; assessment of civil money penalties; recovery of wages due; make whole relief for any U.S. worker who has been improperly rejected for employment, laid off, or displaced; and/or debarment for one (1) to five (5) years.

If you have questions about the H-2B program, please contact one of the immigration specialists in Koley Jessen’s Employment, Labor and Benefits Practice Group.