As H-2B employers are well aware, January 1, 2018, was the earliest date on which an employer seeking a start date of April 1, 2018, could file an H-2B application requesting temporary labor certification. Yesterday, on January 3, the U.S. Department of Labor (“DOL”) issued a public service announcement to alert employers and other interested stakeholders about the high volume of applications received on January 1. Specifically, the DOL received approximately 4,500 applications covering more than 81,600 worker positions.

Except where a statutory exemption applies, the United States Citizenship and Immigration Services (“USCIS”) may only issue up to 33,000 H-2B visas for employers seeking to hire H-2B workers during the second half of Fiscal Year 2018 (April 1 to September 30). Accordingly, the demand for H-2B visas significantly outweighs the number of available H-2B visas, which, absent a legislative change, will likely result in some employers not being able to obtain the desired H-2B visas in 2018.

According to the DOL, the agency is working as expeditiously as possible to issue first case actions, review responses to Notices of Deficiency (“NODs”), and issue Notices of Acceptance where possible. First case actions are taken on a first-filed basis and responses to NODs are evaluated in the order in which they are received. An employer may petition USCIS for H-2B visas only after the DOL has accepted the H-2B application for processing, the employer has conducted the required advertising and recruitment, and the DOL has certified the H-2B application. Importantly, it is the USCIS filing, not the DOL filing, that secures H-2B visas for an employer.

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.

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