• Potomac District

Temporary Increase in H-2B Nonimmigrant Visas for FY 2021

On May 25, 2021, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 22,000 additional visas through the end of fiscal year (FY) 2021. These supplemental visas are available only to U.S. businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. Of the 22,000 additional visas, 16,000 are initially available only for returning workers (workers who received an H-2B visa or were otherwise granted H-2B status in one of the last three fiscal years). The remaining 6,000 visas are set aside for nationals of Honduras, Guatemala, and El Salvador (collectively called the Northern Triangle), who are exempt from the returning worker requirement. See “Who Can Petition for the Additional Visas” below. To qualify for the Northern Triangle allotment, petitions must be received by July 8, 2021. This increase is based on a time-limited statutory authority that expires after Sept. 30, 2021. It does not affect the H-2B program in future fiscal years. The Secretary of Homeland Security decided to increase the cap in accordance with section 105 of division O of the Consolidated Appropriations Act, 2021, Public Law 116-260 (FY 2021 Omnibus). In the FY 2021 Omnibus, Congress again delegated its authority to the Secretary to set a numerical cap for the remainder of the fiscal year. Before authorizing the additional visa numbers, the Secretary of DHS, in consultation with the Secretary of Labor, considered the needs of businesses and other factors, including the impact on U.S. workers and the integrity of the H-2B program.

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