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Procedural Reforms for the Fiscal Year 2020 H-2B Season

09.27.2019

Over the last several years, the demand for H-2B nonimmigrant visas has exponentially increased. Because of the intense competition for H-2B visas, the technology and available staff resources of the U.S. Department of Labor (“DOL”) have been challenged to handle the increasingly large volume of H-2B applications filed on January 1 of each year. As a result of stakeholder comments and the most recent filing period in which the iCERT electronic filing system experienced a service disruption due to the large volume of system user requests, the DOL’s Office of Foreign Labor Certification (“OFLC”) has announced several new procedures that employers should be aware of if seeking to use the H-2B program during the Fiscal Year 2020 H-2B season.

The most noteworthy of these new procedures is the implementation of a randomization process based on the date of filing and the start date of work requested. Specifically, OFLC will process H-2B applications as follows:

  • OFLC will randomly order and assign for processing all of the H-2B applications requesting the earliest start date of work permitted under the semi-annual visa allocation (i.e., October 1 or April 1) and filed during the first three calendar days of the regulatory time period for filing H-2B applications.
  • Based on the randomly-generated order, OFLC will select the number of H-2B applications that, combined, contain a sufficient number of worker positions to reach the semiannual visa allotment of 33,000 H-2B visas. These applications will be placed in Group A.
  • OFLC will then assign to additional groups, in ascending sequential order, all remaining H-2B applications that were filed during the initial three-day filing window that requested the earliest start date of work permitted. Each additional group (e.g., Group B, Group C, etc.) will total no more than 20,000 worker positions, or roughly 1,000 applications per group.
  • Once all applications in Group A have been processed for issuance of a Notice of Acceptance (“NOA”) or a Notice of Deficiency (“NOD”), the applications placed in Group B will be processed for issuance of a NOA or a NOD. This process will be repeated until each group of H-2B applications has been processed and NOAs or NODs are issued.
  • After all applications received during the initial three-day filing window have been processed for issuance of a NOA or a NOD, OFLC will then randomize and process all applications filed on a single calendar day, such as those who filed their applications outside the initial three-day filing window or those who seek to employ H-2B workers beginning later than the earliest start date permitted.

Following issuance of NOAs and/or NODs, H-2B applications will be processed as each successive stage in the process is completed. Employers receiving NOAs may proceed to meet the additional regulatory requirements, including recruitment of U.S. workers and submission of recruitment reports. Employers receiving NODs must correct any deficiencies and receive NOAs before proceeding to meet the additional regulatory requirements. Recruitment reports will be reviewed and processed based on the day they are received, and the certified H-2B applications will be authorized for release in accordance with standard operating procedures.

That the number of applications in Group A is tied to the numerical cap is not meant to be determinative of which employers will ultimately receive H-2B visas, nor does it preclude employers whose applications are in subsequent groups from ultimately receiving H-2B visas. OFLC has simply determined that the statutory cap is a reasonable benchmark for this initial assignment and believes the new procedures will provide stakeholders a more transparent view of the process and may reduce some associated costs for employers who spend time and resources related to preparing applications, responding to NODs, and conducting advertising and recruitment for qualified U.S. workers without knowing whether their H-2B petitions will be accepted by the U.S. Citizenship and Immigration Services due to the statutory semi-annual visa allotments.

OFLC has also developed and deployed a new cloud-based H-2B Electronic Filing Module within the DOL’s new Foreign Labor Application Gateway (FLAG) System for submission of prevailing wage requests and H-2B applications, thereby replacing the legacy iCERT H-2B module and providing improved and streamlined external customer experience starting with the Fiscal Year 2020 season. Additionally, revisions to the H-2B Application for Temporary Employment Certification (Form ETA-9142B) and corresponding appendices have gone into effect to better align information collection requirements with H-2B regulations.

Because we expect a very high demand for H-2B visas in the coming year, employers desiring an April 1, 2020 start date are encouraged to start the process now. If you have questions about applying for H-2B workers, the OFLC’s new procedures outlined above, or other general questions about employment-based immigration, please contact one of the immigration specialists in Koley Jessen’s Employment, Labor, and Benefits Practice Group.

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