The Department of Homeland Security (DHS) has stated that the H-2B visa cap will be supplemented with more visas. They announced that they would issue a regulation making an additional 64,716 H-2B temporary non-agricultural worker visas available to businesses for fiscal year (FY) 2023, in addition to the 66,000 H-2B visas that are typically available each fiscal year.
The H-2B program enables eligible U.S. employers to employ foreign nationals in the U.S. to fill temporary non-agricultural occupations by completing Form I-129. The employment must be a one-time occurrence, seasonal demand, or intermittent requirement. Employers must also ensure that hiring H-2B workers will not impact the wages and working conditions of similarly employed U.S. workers.
Each fiscal year, the number of foreign workers who can obtain H-2B status is limited to 66,000 per year. There is a legislative numerical restriction, or “cap,” on the number of non-citizens who may be issued an H-2B visa or otherwise granted H-2B status.
Workers in the United States in H-2B status who prolong their stay, change companies, or change the terms and conditions of their employment are exempt from this cap. The spouse and children of H-2B employees who are designated as H-4 non-immigrants are also exempt from this cap.
Once the H-2B cap has been reached, the USCIS may only consider applications for H-2B workers who are exempt from the H-2B cap.
Another issue addressed was the institutional disincentives for H-2B employees that exist for reporting or leaving abusive settings, and individuals frequently lack the authority to exercise their legal rights when they are subjected to abusive working conditions. The DOL and DHS emphasizes the significance of protecting all H-2B workers from exploitation and abuse and of making sure that, in accordance with the law, employers do not reject or improperly hire American individuals who are able, willing, qualified, and available to carry out the temporary task.. The departments announced the formation of the H-2B Worker Protection Taskforce to address these challenges, which will focus on:
(1) threats to the H-2B program’s integrity
(2) H-2B workers’ fundamental vulnerabilities, such as their limited ability to leave abusive employment without it affecting their immigration status and
(3) the program’s improper use to avoid hiring U.S. workers
DHS intends to submit a notice of proposed regulation relating to the H-2 programs, including policies that increase H-2 worker rights. H-2B employees benefit American small businesses and job growth, and this announcement will give employers some much-needed relief.
