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H2B Visa - Process Change and Update from JKJ Workforce
Thursday, January 18, 2018
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JKJ Workforce issued the following update regarding H2B visa processing for the second half cap of FY2018.


1) The U.S. Citizenship and Immigration Services (USCIS) announced that the cap for the first half of fiscal 2018 was reached on December 15. According to USCIS, the agency would  reject any H-2B petitions with an employment start date prior to April 1, 2018 that were received after December 15.
 
 2) DOL has announced that on January 1, 2018, the earliest date on which an employer seeking an employment start date of April 1 may file an H-2B application requesting temporary labor certification, OFLC received approximately 4,500 applications covering more than 81,600 worker positions.
 
3) DOL has announced that they will not release any labor certificates for the second half of the cap until February 20, 2018 and will release them on a first in - first out basis - by day and hour.  So if your application was submitted at 1:00 am January 1, 2018 and you have completed your recruitment in a timely manner, your labor certificate should be issued before one that was submitted at 2:00 am on January 1, 2018, etcetera.  (The exact announcement from DOL is at the end of this post).
 
What does this mean?  If there is cap relief prior to February 20, 2018 all employers can demonstrate to both DOL and DHS that they have a valid need for temporary, seasonal, workers should obtain their workers.
 
If there is no cap relief prior to February 20, 2018 then only about 30% of the employer who filed and are able to demonstrate to DOL and DHS that they have a valid need for temporary, seasonal workers will obtain their workers - and those who filed first will be certified first.
 
Congress must pass a spending bill or CR by January 19, 2018 - this Friday - or the government shuts down.  In my opinion there is very little chance that cap relief will be included in whatever vehicle passes on January 19, 2018.
 
The information that is available indicates that Congress will pass a CR that expires on February 16, 2018.  So, we must do everything possible between January 20, 2018 to February 20, 2018 to convince Congress to provide cap relief in the Appropriations Package that passes on February 16, 2018.
 
FIRST: H-2B employers who want cap relief so we can have access to more visas this year, should contact their Representative in the US House and their two US Senators, starting on Monday January 22, 2018 and request that they support adding cap relief to any appropriations bill that Congress considers in the next sixty days.
 
Employers can reach their Representative in the House through the Capitol switchboard at 202-225-3121. Once connected, ask to speak to the staff person that handles H-2B visa issues.  You can also ask for that staff person's email address and send a follow up email. (email will generally be firstname.lastname@mail.house.gov)
 
Employers can find the local contact information for  Senators and Representatives on their websites or through www.house.gov and www.senate.gov.
 
 
SECOND: I am a founding director of the Seasonal Employment Alliance and we are working on a Fly-In to Washington, DC on February 13 and February 14, 2018.  When details are confirmed I will let you all know - so we can make a final push for Cap Relief.
 
United, working together, with a single message, we will get Cap Relief for 2018 and we will get a workable H-2B program moving forward.  
 
The language from today's DOL Announcement is below.

- James Judkins, JKJ Workforce
 
 


January 17, 2018. H-2B Processing Announcement
The Department of Labor's (DOL) Office of Foreign Labor Certification (OFLC) is making this announcement to alert employers and other interested stakeholders about a process change to better assure fairness regarding the issuance of H-2B temporary labor certifications due to the unprecedented volume of applications received on January 1, 2018.

H-2B Visas: Statutory Background and OFLC Process
The Immigration and Nationality Act (INA) sets the annual number of aliens who may be issued H-2B visas or otherwise provided H-2B nonimmigrant status by the Department of Homeland Security (DHS) to perform temporary non-agricultural work at 66,000. Up to 33,000 H-2B visas may be issued in the first half of a fiscal year (October 1 to March 31), and the remaining semi-annual allocation of 33,000 visas will be available for employers seeking to hire H-2B workers during the second half of the fiscal year (April 1 to September 30). This announcement concerns the processing of the H-2B temporary labor certification applications for the April 1 - September 30, 2018 period of need.

OFLC process for obtaining an H-2B certification is a two-step process for employers. Employers must first file a complete and accurate Application for Temporary Employment Certification (ETA Form 9142B). Following review and acceptance from OFLC, the employer must then conduct recruitment of U.S. workers and file a recruitment report. The Department reviews those reports and issues final labor certification decisions to employers who comply with all regulatory requirements as they are returned to OFLC by employers. Employers granted temporary labor certification are then eligible to file a petition with the United States Citizenship and Immigration Services (USCIS) at the DHS.

Process Change for Granting Temporary Labor Certification
Because of the intense competition for H-2B visas in recent years, the semi-annual visa allocation, and the regulatory requirement that employers apply with OFLC for a temporary labor certification 75 to 90 days before the start date of work, employers who wish to obtain visas for their workers under the semi-annual allotment for periods of need beginning from April 1 - September 30, 2018, must promptly apply for a temporary labor certification and then file a petition with USCIS before the cap is reached. As a result, OFLC typically experiences a significant "spike" in labor certification applications at the beginning of January for temporary or seasonal jobs during the U.S.'s early spring and summer weather months.

Thus, on January 1, 2017 (FY 2017), OFLC received 1,538 applications covering approximately 26,673 worker positions for a work start date of April 1, 2017; approximately 80% of the entire semi-annual visa allocation of 33,000. By contrast, on January 1, 2018, OFLC received approximately 4,498 applications covering 81,008 worker positions requesting an April 1, 2018, start date of work. This unprecedented level of employer requests for H-2B workers on January 1, 2018 is approximately three times greater than the number of applications received on January 1, 2017, and more than two and one-half times greater than the 33,000 semi-annual visa allotment for FY 2018 permitted under the INA. In previous years, OFLC processed applications as expeditiously as possible in a manner irrespective of the time of day the application was filed, only focusing on processing applications by the day they were filed. Although OFLC is working as expeditiously as possible to issue first actions, review responses to Notices of Deficiency, and issue Notices of Acceptance, the overwhelming workload this year has strained OFLC's processing system and resulted in delays for the majority of all applications filed on January 1. OFLC expects the first 2,400 applications filed on January 1 (which represent approximately 40,000 worker positions) will be processed for first actions by next week, with the remainder of all filed applications processed for first actions in the weeks that follow.

Employers receiving Notices of Acceptance can proceed to meet the additional regulatory requirements, including recruitment of U.S. workers and submission of recruitment reports. Employers receiving Notices of Deficiency that are corrected, and who then receive a Notice of Acceptance, can also proceed to meet the additional regulatory requirements. In order to promote fairness for employers in accessing the H-2B program and due to the unprecedented volume of applications on January 1, OFLC is making a change to its process regarding the issuance of final labor certification decisions. This process change will better reflect the sequential order in which employers filed applications. Thus, OFLC will not begin releasing certified H-2B applications (Form ETA-9142B Application for Temporary Employment Certification) until February 20, 2018. On that day, OFLC will release certified H-2B applications that have met all regulatory requirements as of that day in sequential order based on the original calendar day and time the application was filed (i.e., receipt time). Thereafter, OFLC will continue to release certified H-2B applications in a sequential manner until all applications are released. OFLC will continue to issue rejections, withdrawals, and denials of labor certification applications in accordance with standard procedures. This process change will allow employers who filed promptly on January 1, 2018, sufficient time to meet regulatory requirements, including the recruitment and hiring of qualified and available U.S. workers, thus preserving the sequential order of filing that took place on January 1, 2018, to the extent possible.

As required, OFLC will grant temporary labor certification only after the employer's H-2B application has met all the requirements for approving labor certification under 20 CFR 655.50 and the subpart. In accordance with regulatory requirements, OFLC will send all certified H-2B applications to the employer, or the employer's authorized attorney or agent, by means normally assuring next day delivery.


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