On May 21, 2021, the Department of Homeland Security (DHS) and Department of Labor (DOL) published a join-temporary rule making available an additional 22,000 H2B temporary nonagricultural guest worker visas for FY-2021 [link]. The United States Citizenship and Immigration Services’ (USCIS) press release [link] on the news explains that these additional H2B visas will be available only to “employers who are likely to suffer irreparable harm without these additional workers.” Furthermore, 6,000 of the 22,000 supplemental H2B visas are being reserved for beneficiaries who are nationals of Honduras, El Salvador, and Guatemala.

Beginning on May 25, 2021, employers that have completed a test of the U.S. labor market to verify that there are no willing, qualified, and able U.S. workers for a position that falls within the ambient of the H2B program may file a Form I-129, Petition for a Nonimmigrant Worker, to seek additional H2B workers. Consistent with the purpose of the newly available H2B visas, the employer must also “submit an attestation with their petition to demonstrate their business is likely to suffer irreparable harm without a supplemental workforce.”

The attestation must be submitted on the DOL Form ETA 9142-B-CAA-4 [link]. It is important to note that the attestation is filed under penalty of perjury, meaning that employers must be honest about their need for additional workers. Furthermore, the employer must attest that he or she is seeking to employ returning workers only, unless it is seeking to employ a worker who is eligible under the 6,000 H2B visa allotment for nationals of Honduras, El Salvador, and Guatemala.

Employers who hope to take advantage of the additional H2B visa allotment should prepare to file their Forms I-129 expeditiously, and may consult an experienced immigration attorney in the area of nonimmigrant work visas [see category] for case-specific guidance.