The Department of Homeland Security will release an additional 30,000 H-2B visas for returning seasonal workers who previously worked in the U.S. during one of the last three fiscal years
(2016, 2017 and 2018). On May 6, 2019, DHS announced that a joint DHS/DOL temporary rule increasing the H-2B cap would be published in the Federal Register and effective on May 8, 2019, based on authority granted in the Consolidated Appropriations Act, 2019. The 30,000 H-2B visas are in addition to the 66,000 visas already issued during this fiscal year. As in previous years, this increase is based on a time-limited statutory authority and does not affect the H-2B program in future fiscal years.
A statement from the Office of Legislative Affairs at the U.S. Department of Homeland Security read: “Congress is in the best position to know the ‘right’ number of H-2B visas that American businesses should be allocated without harming American workers. DHS is committed to ensuring that our immigration system is implemented lawfully and that American workers are protected. We look forward to working with Congress so it can set an appropriate numerical limitation moving forward.”
On May 8, 2019, petitioners who may be eligible for H-2B visas under the supplemental cap can file Form I-129, Petition for a Nonimmigrant Worker, including an I-129H Supplement, with an
unexpired Temporary Labor Certification (TLC) to USCIS. Petitioners will also be required to complete Form ETA-9142-B-CAA-3, Attestation for Employers Seeking to Employ H-2B Nonimmigrant Workers Under Section 105 of Division H of the Consolidated Appropriations Act certifying that their business is likely to suffer irreparable harm if unable to employ the requested H-2B workers and that each of the workers requested and/or instructed to apply for a visa under the supplemental H-2B cap have been issued an H-2B visa or otherwise granted H-2B status during one of the last three fiscal years. Form ETA-9142-B-CAA-3 and its instructions is now available on the U.S. Department of Labor website. Please note that according to the temporary rule, completion of the Form ETA-9142-B-CAA-3 is seen as sufficient for the purposes of attesting that each worker meets the returning worker requirement. No further supporting documentation or paperwork is required at the time of filing.