U.S. Citizenship and Immigration Services sent this bulletin at 09/19/2017 04:43 PM EDT
WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) is no longer accepting petitions from U. S. employers seeking to hire temporary nonagricultural workers under the one-time increase to the Fiscal Year (FY) 2017 H-2B cap announced in July.
For the first time, in May, Congress delegated its authority to the Secretary of Homeland Security to increase the number of temporary nonagricultural work visas available to U.S. employers through FY 2017.
After consulting with Secretary of Labor Alexander Acosta, then-Secretary of Homeland Security John Kelly determined there were not enough qualified and willing U.S. workers available to perform temporary nonagricultural labor to satisfy the needs of some American businesses in FY 2017. Consequently, additional H-2B visas were made available to American businesses that could establish they would likely suffer irreparable harm if they could not hire all the H-2B workers requested in their FY 2017 petitions. An additional 15,000 visas were made available under a final rule published in July. USCIS previously met the FY 2017 cap for H-2B visas in March.
Following the filing deadline guidance included in July’s final rule, USCIS has stopped accepting petitions and is rejecting any FY 2017 H-2B cap-subject petitions received after Sept. 15. With the close of the petition period on Sept. 15, USCIS has tabulated that it has received a total request of 13,534 workers.
In its commitment to protect U.S. workers, USCIS required petitioning employers to attest, under penalty of perjury, that their business would likely suffer irreparable harm if they could not hire all their requested H-2B workers before the end of the fiscal year. Some employers were also required to conduct a fresh round of recruitment efforts for U.S. workers before being allowed to petition for additional foreign workers.
Petitions that have been submitted but are not approved by USCIS before Oct.1 will be denied, and any associated fees will not be refunded.
USCIS will continue to accept FY 2017 H-2B petitions for workers who are exempt from the congressionally mandated cap.
Additional information about how the supplemental FY 2017 H-2B visas are being used, including information about the petitioning employers, can be found on the One-Time Increase in H-2B Nonimmigrant Visas for FY 2017 webpage.
The agency also continues to encourage the public to report H-2B program fraud and abuse by emailing firstname.lastname@example.org.
One-Time Increase in H-2B Nonimmigrant Visas for FY 2017
On July 19, 2017, the Departments of Homeland Security and Labor published a final rule increasing the numerical limit (“cap”) on H-2B nonimmigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2017. These visas are available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition.
This is a one-time increase based on a time-limited statutory authority. It does not affect the H-2B program in future fiscal years. It will expire at the end of the day on Sept. 30, 2017.
Secretary Kelly’s decision to increase the cap was determined in accordance with Section 543 of the FY 2017 Consolidated Appropriations Act (“FY 2017 Omnibus”). Congress delegated its authority to Secretary Kelly to set a numerical cap for the remainder of the fiscal year. Secretary Kelly considered the needs of American businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program.
Who Can Petition for the Additional Visas
Only American businesses that are likely to experience irreparable harm (permanent and severe financial loss) without the ability to employ all of the H-2B workers that they request on their Form I-129 petition for this fiscal year may file under this one-time increase in the H-2B cap.
The joint final rule does not apply to petitions that are not subject to the H-2B cap, including those petitions filed in connection with an H-2B extension of stay request or on behalf of certain fish roe producers. Such petitions may continue to be filed under the normal rules of the H-2B program.
How to File an H-2B Petition
On July 19, 2017, USCIS began accepting additional cap-subject H-2B petitions with employment start dates on or before Sept. 30, 2017, and is considering them in the order they are received.
To file an H-2B petition under this one-time increase to the H-2B cap, petitioners must:
- Meet all existing H-2B eligibility requirements (including obtaining an approved temporary labor certification (TLC) from the Department of Labor (DOL) that is valid for the entire employment period stated on the petition);
- Conduct a fresh round of recruitment for U.S. workers if the TLC contains a start date of work before June 1, 2017; and
- Submit an attestation on Form ETA 9142-B-CAA (PDF) in which the petitioner affirms, under penalty of perjury, its business will likely suffer irreparable harm if it cannot hire all the requested H-2B workers before the end of the fiscal year. Please follow the Form ETA 9142-B-CAA Instructions (PDF) when completing the attestation.
Petitioners must retain evidence and records proving compliance with the rule and demonstrating that their business is likely to suffer irreparable harm if they are unable to employ all the H-2B workers requested in their petition for 3 years. Petitioners must provide the documentation if DHS or DOL requests it.
Important Filing Information
The employment start date listed on an H-2B petition must be the same as the employment start date authorized on the TLC according to 8 CFR 214.2(h)(6)(iv)(D). For purposes of this H-2B cap increase, petitioners may use TLCs that list an employment start date that has passed. However, the TLC must still be otherwise valid. Petitions with employment start dates that do NOT match the TLC’s employment start date will be rejected and returned with fees. USCIS may deny or reject a petition submitted without the required attestation.
Petitioners are also encouraged to provide a duplicate copy of their petition and all supporting documentation at the time of filing. Failure to submit duplicate copies may delay the Department of State from issuing a visa to otherwise eligible applicants.
If a petitioner files a petition seeking H-2B workers under this cap increase and requests a change of status for a worker in the United States, USCIS will deny the change of status request and adjudicate the petition.
If USCIS approves the H-2B petition, the worker would need to obtain the H-2B visa, if applicable, at a consular post abroad before seeking admission to the United States in H-2B status at a port of entry. Check the Department of State processing times web page to ensure that workers have sufficient time to apply for a visa.
USCIS will stop accepting petitions under this one-time increase on Sept. 15, 2017. USCIS will reject any petitions received after Sept. 15 or after the cap is reached, whichever is earlier. Petitions not approved before Oct.1, 2017, will be denied and any fees will not be refunded.
USCIS will consider petitions requesting an employment start date on or after Oct. 1, 2017, towards the FY 2018 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2018 H-2B cap filings.
To report that a participating employer may be abusing the H-2B program, please email us at ReportH2BAbuse@uscis.dhs.gov. Your email should include information identifying the H-2B petitioning employer and relevant information that leads you to believe that the H-2B petitioning employer is abusing the H-2B program.
David Rountree | November 14, 2016
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It’s too early to say how the election of Donald Trump will affect the landscaping industry, but there’s evidence here and there that aids in making educated guesses.
For the green industry, one of the most pressing political issues today is one it shares with virtually all other businesses in the country: the new federal overtime rule. The rule goes into effect Dec. 1 and dramatically increases the amount someone must be paid to be exempt from overtime requirements.
Legislation in both the Senate and House would stop implementation of the new regulation, which is administered by the Wage and Hour Division of the U.S. Department of Labor. In different ways, the bills would require a phasing in of the new overtime requirements over several years.
Even before the Labor Department’s final rule was published in the Federal Register, business groups – including the National Association of Landscape Professionals (NALP) – began fighting hard for a gradual implementation of the new requirements.
All along, however, all sides acknowledged that even if a bill to require a phasing in passed, it would be vetoed by President Obama. That will probably remain true right up to the inauguration of Trump on Jan. 20.
Indeed, after the close of business Monday evening, the Labor Department issued the following statement about a Congressional Budget Office report on the new rule released earlier in the day:
Today’s CBO report confirms what we already knew: the overtime rule restores the promise that a long day’s work should be rewarded with fair pay. It will result in higher earnings for middle income workers. At a time when income inequality is already of great concern, the report also concludes that reversing the rule would primarily benefit people with high incomes. Because of the Obama Administration’s commitment to an economy that works for everyone, millions of hard working Americans will soon have the overtime protections as originally intended by the law. Opponents of the rule, would be well advised to remember that responsible employers are prepared to comply with the rule, and that the public supports the changes embodied in it. We will continue our efforts to help employers as they move toward compliance.
Paul Mendelsohn, NALP’s vice president of government affairs, said he doubted Obama would sign a bill halting implementation, but he was confident action would be taken in the wake of Trump’s election to stop full implementation and require a phasing in of the overtime regulation.
If that happens relatively soon after Trump takes office, businesses will be able to adjust to the new overtime requirements in a much more orderly way, Mendelsohn said.
The principal change the rule makes is a doubling of the salary threshold necessary to be exempt from overtime requirements. Today, the threshold is $23,660 a year. On Dec. 1, it will be $47,476 a year. Stated in terms of weekly pay, the minimum required for exemption rises from $455 to $913.
Mendelsohn noted that Trump had said during the campaign that for every two regulations in place, he expected to undo at least one. “So, he’s targeting things that have been foisted upon American businesses, and this (overtime issue) is something that has seen a huge array of individuals lined up in opposition.”
For H-2B, the outlook is cloudy at best
There’s more than one reason to wonder about the future of the non-immigrant visiting foreign worker program known as H-2B, which is crucial to numerous landscaping companies.
One of those reasons is U.S. Sen. Jeff Sessions, R-Alabama, who has been a Trump supporter since well before the former reality TV star won the GOP nomination. Many observers expect Sessions to be named to a Cabinet post.
On Capitol Hill, Sessions is well-known for his consistent, vocal – even vehement – opposition to the H-2B program, which he says takes jobs Americans want and need and gives them to foreign workers.
Sessions has also described the H-2B program as a harbor intended to lead to amnesty for illegal immigrants.
Asked whether H-2B’s prospects were as dim as they appeared in light of Trump’s close ties with Sessions, Mendelsohn said it’s important to remember that Trump’s businesses have used H-2B extensively, so the president-elect probably appreciates how important the program is for some types of business that regularly need temporary foreign workers.
“It doesn’t appear to me that Trump, philosophically, lumps H-2B in with the rest of the immigration question,” Mendelsohn said, “but, rather, sees it as something that segments of business use and need to manage operations.”
- See more at: http://www.totallandscapecare.com/landscaping-business/feature-article/landscaping-trump-election/#sthash.nLj3zwyd.dpuf
H-2B Employers Should Continue to Identify “Returning Workers” in Petitions for FY 2017
USCIS urges prospective H-2B employers seeking to hire potential “returning workers” with employment start dates in fiscal year (FY) 2017 to continue to identify these workers and provide the H-2B Returning Worker Certification.
The H-2B returning worker provisions of the Consolidated Appropriations Act of 2016 (Public Law 114-113) are set to expire Sept. 30, the last day of FY 2016, and Congress may or may not reauthorize them. These current provisions exempt eligible returning workers from the FY 2016 cap if they were counted toward the H-2B limit during fiscal years 2013, 2014 or 2015.
These provisions, which amend section 214(g)(9) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(9)), do not apply to the FY 2017 cap. If reauthorized, either before or after Sept. 30, the provisions for FY 2017 would likely exempt returning workers who were counted toward the H-2B limit during fiscal years 2014, 2015 or 2016. Any action is in the discretion of Congress and the President.
USCIS has already started to receive H-2B petitions requesting employment start dates in FY 2017. Continuing to identify and certify returning workers will enable USCIS to keep an accurate count of H-2B nonimmigrant workers for the FY 2017 cap regardless of whether the provisions are reauthorized. If Congress reauthorizes the provisions, and if employers continue to identify and certify returning workers in H-2B filings, then USCIS will be able to identify cap-exempt cases and adjust its counts accordingly. This will make more visa numbers available to other workers.
In addition to the rules for filing Form I-129, Petition for a Nonimmigrant Worker, the following requirements apply to H-2B returning workers:
- Certification: In the petition, employers must complete and include the H-2B Returning Worker Certification. This certification must be signed by the same person who signed Part 7 of Form I-129. The certification states: “As a supplement to the certification made on the attached Form I-129, Petition for a Nonimmigrant Worker, I further certify that the workers listed below have been issued an H-2B visa or changed to H-2B status during one of the last three (3) fiscal years.”
- Named Workers: The H-2B Returning Worker Certification must include the full name of the worker. If the worker is in the United States under a different status, and the employer is petitioning to change the status to H-2B, then including evidence of previous H-2B admissions, such as a copy of the worker’s visa, may help prevent processing delays.
- Multiple Workers: A single petition may be filed on behalf of more than one worker. However, any returning workers must be listed on the H-2B Returning Worker Certification. For multiple named workers, employers must submit Attachment 1 of Form I-129 (pages 35 and 36).
USCIS recommends filing petitions for returning workers separately from petitions for new H-2B workers.
Cap Counting Procedures
The controlling date for H-2B fiscal year cap counting is the requested employment start date.
Under the current provisions, eligible returning workers with a requested start date of Sept. 30, 2016, or earlier are deemed exempt from the FY 2016 cap even if their employment extends into FY 2017. Petitions requesting H-2B workers for new employment with a start date of Oct. 1, 2016, or later will be counted toward the FY 2017 cap of 66,000, pending a decision on reauthorization.
If Congress has not extended the provisions by the time the 33,000 cap for the first half of FY 2017 is reached, then USCIS will consider those provisionally designated as returning workers as subject to the cap and will reject additional cap-subject H-2B filings.
Last Reviewed/Updated: 09/13/2016