A lot of practitioners were caught by surprise today when the Department of Homeland Security and Department of Labor released a final rule providing for a one-time increase of 15,000 H-2B visas for the current fiscal year ending on September 30th. This is possible because in last May’s Omnibus budget bill, Congress inserted language in Section 543 of the Omnibus that allowed DHS, in consultation with DOL, to increase the number of H-2B visas available to US workers for the current fiscal year. Specifically, Section 543 says “The Secretary of Homeland Security, after consultation with the Secretary of Labor, and upon the determination that the needs of American businesses cannot be satisfied in [FY] 2017 with U.S. workers who are willing, qualified, and able to perform temporary nonagricultural labor,” may increase the total number of visas by not more than the highest number of H–2B nonimmigrants who participated in the H-2B returning worker program in any fiscal year in which returning workers were exempt from the H-2B numerical limitation. DHS has settled on 15,000 as the number it is requesting though some were suggesting as many as 70,000 additional visas are needed and could have been authorized.
While the news is no doubt welcome in the H-2B community, it’s a band-aid and advocates for expanding the H-2B program in terms of the numerical cap and also by exempting returning workers from the cap are pushing for a permanent legislative fix. Senator Tom Tillis, a North Carolina Republican who serves on the Senate Immigration Subcommittee, went so far as to place a hold on the nomination of Francis Cissna as USCIS Director, to protest Congress’ lack of action on the H-2B issue.
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