February 2023 – Counsel Corner

H-2B Updates

This year we have seen record numbers of H-2B applications and the Administration has, again, cut the number of available work visas.  What was already an oversubscribed H-2B program has seen radical popularity with companies more heavily relying on it to survive for the next year.  This year, there were applications filed for 170,000 workers with only 33,000 available H-2B visas. The returning worker clause was effectively gutted to only allow companies to pull workers from the Triangle with 20,000 available visas. However, the December 15, 2022 temporary final rule increased the cap up to 64,716 additional visas for FY 2023. Of the 64,716 additional visas, 44,716 are 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 20,000 visas are set aside for nationals of the Triangle (El Salvador, Guatemala, and Honduras) and Haiti.

USCIS has recently announced that the Cap has been reached for the additional 18,216 returning worker H-2B visas for the first half of FY 2023 (i.e., with start dates on or before March 31, 2023). The current rules are pushing companies whose workers were not accepted for the 18,216 returning-worker allotment to utilize the visas allotted to the Triangle countries and Haiti.  There are currently about 15,700 visas remaining for the Triangle and Haiti out of the original 20,000 allotted.  If the numbers were not used from the Triangle in the First Cap, they will be redistributed into the Second Cap to allow for more potential visa slots to be used.

With this oversubscription of the H-2B program and coming out of the COVID government shutdown at the Department of Labor and USCIS, the DOL has proposed fee increases across the board to help alleviate the massive backlog of immigration filings.  The proposed fee increases are still in public comment period and not yet approved. If approved, the total fee increases for the H-2B program, specifically the Form I-129, will be a $620 increase for named beneficiaries, for a total of $1,080, and a $120 increase for unnamed beneficiaries, for a $580 total. Increasing the yearly H-2B fees highlights the intense need for companies to transition their temporary labor force to permanent status.

Recommendations

One of the other key changes new to the H-2B program is that a company can now have two concurrent H-2B petitions to pull the workers from Mexico and concurrently pull out of the Triangle. To increase your chances of obtaining H-2B visas, we suggest to possibly file two petitions for your company to increase your chances of obtaining workers.  If your company has returning workers from the Triangle (or is able to recruit returning Triangle workers) and are willing to split your labor force between Mexico and the Triangle, we recommend filing for a start date before April 1, 2023 for the returning workers from the Triangle (getting half your workers). We also recommend filing for an October 1, 2023 start date for your lottery workers from Mexico (getting the other half of your workers). With the October 1 start date, those workers could stay until, e.g., December 15, 2023.  Those workers would then be exempt from the April 2024 cap and could come back in April 2024 under the returning worker provision.

If your workers are currently in the U.S., you should also consult your H-2B provider about filing for an H-2B extension for up to two additional years. This would help to assure that the workers stay in the country while ULS processes their PERM/Green Card applications.

PERM Updates

With regards to PERM, the permanent prevailing wage determinations have been coming back between 6 and 12 months from the date of filing. What we have been seeing is that the PERM PWDs are getting pushed back by about three months because of the record numbers of H-2B filings. The DOL processes H-2B and H-2A PWDs first because of the statutory provision providing those be issued within 15-20 days.  Since H-2B has had a record number of PWD filings, the DOL is slower to process the PERM PWDs.  For the companies with pending PWDs over 5 months, I am submitting a request to the DOL for a status update on your PWD.  If you receive any emails from the DOL/USCIS about permanent prevailing wages, please immediately forward those along to us.

I’d like to be clear as to why we are seeing such massive backlogs and processing times from the Department of Labor and USCIS.  When Covid hit, there were massive government layoffs and orders for the government workers to shelter at home, most all immigration and temporary employment programs stopped. Visas went unused and the applications continued to pour in. The DOL and USCIS are underfunded and understaffed; they are proposing to raise the filing fees across the board for every immigration application, and they have appealed to Congress to raise their budget in an effort to afford to hire the help needed to reduce the backlog.  On top of all that, an estimated 5 million people have crashed the southern border and creating chaos within the immigration system, diverting the Agencies’ needed efforts away from the companies and individual workers attempting to play by the rules to immigrate and seek employment legally. There is an immigration and labor crisis here at home and we at ULS are trying to make a difference.

If you have already filed your permanent PWD application with us, you’re going to be ahead of this massive influx of applicants and are going to be situated very well for green card applications.  Unfortunately, we are at the mercy of government processing times and they have been taking longer. Longer processing times do mean that some of the workers’ information and documents will change/ need updating and we will need to keep in contact with your workers to ensure correct information.  Our guarantee is that as soon as the government responds and issues back the forms, we are on top of the process and will be ready to file the next stage.

What We Need From You

What we need from you is an update on what H-2B Lottery Group you received (if you have not already told us), if the petition was for Mexico, if you have pulled workers from the Triangle, the number of workers you applied for, and the number of workers you are likely to receive. We will also need any and all updated documents from your workers––new I-94s, new passports, new visas, and their new U.S. addresses. We will work with you and your H-2B agent to coordinate the best plan for you to receive your workers for the next year and to ensure we appropriately file for their green cards.

Elliott Mason President and General Counsel, ULSULS will continue to track your priority date and immediately inform you when you will be eligible to file for your workers’ Green Cards. Stay tuned for more updates on the Visa Bulletin and other exciting topics.

Elliott S. Mason
President and General Counsel

(214) 734-0147